Kaur v Minister for Immigration
[2018] FCCA 2389
•30 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2389 |
| Catchwords: MIGRATION – Application for judicial review – student visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.499, 501 Migration Regulations 1994, cl.572.223. |
| Cases cited: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 QAAA of 2004 v Minister for Immigration and Multicultural & Indigenous Affairs [2007] FCA 1918 |
| First Applicant: | PAWANDEEP KAUR |
| Second Applicant: | SANDEEP KAUR |
| Third Applicant: | ANSHNOOR SINGH THIND |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1129 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 22 May 2018 |
| Date of Last Submission: | 22 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 30 August 2018 |
REPRESENTATION
| The Applicant appeared In Person |
| Solicitors for the First Respondent: | Mills Oakley |
ORDERS
The application be dismissed.
The Applicants pay the First Respondent’s costs fixed in the sum of $5,900.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1129 of 2017
| PAWANDEEP KAUR |
First Applicant
| SANDEEP KAUR |
Second Applicant
| ANSHNOOR SINGH THIND |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 18 May 2017. The Tribunal affirmed the decision of a delegate to the Minister not to grant the first named applicant a Student (Temporary) (Class TU) visa.
The first named applicant applied for the student visa on 5 June 2015 to undertake an Advanced Diploma of Business and a Diploma of Production Horticulture. The second and third named applicants are the husband and child of the applicant and rely on her claims as members of her family unit.
The delegate found that the applicant did not meet the criteria under cl.572.223 of Schedule 2 to the Migration Regulations 1994, as the delegate was not satisfied that the applicant was genuinely intending a temporary stay in Australia.
On 18 August 2015, the applicant lodged an application for review the Tribunal. On 24 April 2017, the Tribunal sent the applicant an Invitation to Attend a Hearing requesting the applicant provide documents in relation to her current enrolment, her past studies and related work in Australia; and an explanation of any gaps in her study. The Invitation also advised that the Tribunal “will assess whether you intend genuinely to stay in Australia temporarily” and further provided a copy of Direction No. 53: see court book p.54.
On 8 May 2017, the applicant responded to the invitation providing a statement titled ‘Genuine Temporary Entrant’, a number of certificates and academic transcripts, Indian land documents in the name of the second applicant and medical evidence: see court book pp.69-126. The applicant attended the Tribunal hearing to present arguments and give evidence.
The Tribunal’s findings
The Tribunal explained to, and discussed with, the applicant the considerations relevant to assessing whether an applicant is a genuine temporary entrant in accordance with Direction No.53, at [8] and [19] of its decision, namely:
· Your circumstances
· The value of your course/s to your future
· Your Immigration history
· Your incentive to stay in Australian or return hom
· If you are using the student visa programme to maintain ongoing residence in Australia
· Any other relevant matters
The Tribunal considered the applicant’s ‘Genuine Temporary Entrant’ statement where the applicant stated she came to Australia to study English and a Certificate III in Automotive Mechanical, but that being the only female in the Automotive course was nerve racking, and that she was advised to change course. The applicant told the Tribunal that she never actually started the automotive course and instead commenced studying printing and graphic arts: see [15].
The applicant told the Tribunal that her family in India is from a farming background. The Tribunal questioned the applicant’s “passion” for agriculture given that she completed a Bachelor of Arts in India and a course in printing and graphic arts: see [16].
In relation to the applicant’s immigration history, the Tribunal said of the applicant:
21. You have held three previous student visa so this is your fourth student visa application, and despite having completed a Bachelor’s degree at University before arriving, since being in Australia have studied lower level courses that are unrelated to your previous studies or experience or indeed to each other.
22. You’ve been enrolled in a number of courses, some on multiple occasions, many of which have been cancelled. In chronological order they include: Certificate IV in Spoken and Written English, Certificate III in Automotive Mechanical Technology, Certificate III in Printing and Graphic Arts (2) Certificate III in Automotive Mechanical Technology, Diploma of Business (Frontline Management) (2) Diploma of Multimedia, Diploma of Interactive Digital media, Certificate IV in Business (3) Diploma of Business, Diploma of Management (2), Diploma of Production Horticulture (3) Certificate II in Horticulture, Diploma of Human Resource Management, Certificate IV in Production Nursery, Advanced Diploma of Management, Diploma of Business, Certificate IV in Production Nursery, Diploma of Business, Advanced Diploma of Business and Diploma of Production Horticulture.
The Tribunal found that the applicant’s failure ‘to commit to and complete courses in which [she had] enrolled suggests [her] desire and… intention to remain in Australia outweighs [her] desire to achieve an educational outcome’: see [24].
The Tribunal found the applicant had been in Australia for 8 years but had only ‘provided evidence of having completed about 3½ years of horticulture studies which [she says] is the reason [she] came to Australia’: see [26].
The Tribunal accepted the applicant’s family has land in India and that the applicant may be required to work on that land. The Tribunal did not accept that the applicant had a ‘legitimate business plan’ or that the courses she studied were relevant to her future working on her family land: see [28].
The Tribunal accepted that the applicant had family back in India but found that her husband and child being in Australia and her only having returned once indicated she ‘did not have a strong incentive to return home’: see [31].
The Tribunal did not accept the applicant’s explanations for significant gaps between her studies: see [29].
The Tribunal found of the applicant, at [35]:
35. …your motivation is not the pursuit of an academic pathway you do not have a genuine intention to study but to remain resident in Australia.
Grounds of the Application
The applicant raises the following grounds for judicial review:
1. The decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied clause 572.223(1)(a) Migration Regulations 1994 (Regulations)
Particulars
a. Applying Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 the Tribunal failed to have regard to all the mandatory criteria when applying and considering
cl 572.223 Regulations.
b. The Tribunal erred in not considering and applying clause 573.223(2)(b)(ii) any other relevant matter when clearly the applicant's circumstances and facts demands that the said clause be invoked in her favour
c. The delegate misconstrued clause 572.223(1)(a) in finding that the appellant was not a genuine temporary entrant (GTE).
d. The Tribunal erred in not applying the facts when considering cl 572.223(1)(a)
e. The Tribunal made jurisdictional error in failing to consider that the delegate made a decision on the basis of no evidence applying the case QAAA of 2004 v Minister for Immigration and Multicultural & Indigenous Affairs [2007] FCA 1918.
2. In the alternative to ground 1 above the Tribunal erred by not considering the delegate considered information from PRISM which was not put to the applicant.
Particulars
a. In the decision record the delegate referred to PRISMS and made several findings without according the applicant an opportunity to comment on the findings.
b. The information from PRISMS was not put to the applicant for her comments
c. The information from PRISMS was considered by the delegate when refusing the applicant's application for a visa
3. The Tribunal failed to consider applying the case of Aulakh & Ors v Minister for Immigration & Anor (2017) FCCA 544 that inconsistencies in the evidence of the applicant before it does not go to the core of the applicants claim for the student visa.
Ground 1
The relevant Regulation relied upon by the applicant in ground 1 was set out in the decision of the delegate and is in the following terms:
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; and
(b) the applicant meets the requirements of subclause (1A) or (2).
(1A) If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:
(a) the applicant gives the Minister evidence that the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii) educational qualifications required by the eligible education provider; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.
(2) If subclause (1A) does not apply:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
The applicant made no written submissions identifying any particular fact or circumstance that this ground relates to, nor was she able to identify any matter in oral submissions.
The ground alleges that the Tribunal misconstrued and misapplied or misapplied cl.572.223(1)(a) which clause requires the Tribunal to consider whether or not the applicant ‘intends genuinely to stay in Australia temporarily’ having regard to four factors: (i) the applicant’s circumstances; (ii) immigration history; (iii) the intentions of a parent or guardian if the applicant is a minor; and (iv) any other relevant matter. The applicant in this case is not a minor so clause 572.223(1)(a)(iii) can’t apply.
The decision itself also identifies that Direction No.53 made under s.499 of the Migration Act 1958 applies in this case and has regard to it in making the assessment. Whilst the decision of the Tribunal is not a lengthy one, it appears to traverse the applicant’s circumstances and immigration history, and a number of the applicant’s other circumstances as are identified in accordance with Direction No.53.
The two authorities referred to by the applicant in the grounds provide little assistance in identifying the actual basis for this ground from review. The first authority Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140, concerns whether or not general deterrence was taken into account in a case concerning whether or not a visa applicant passed the character test under s.501 of the Act. The character test had no relevance to this particular case or decision. There is no suggestion in the decision that some form of general deterrence was in some way tangentially relevant to this case, nor could it reasonably be argued that the decision-maker was required to take into account some form of general deterrence in deciding whether or not this particular applicant should succeed.
The particulars (b) and (d) of the ground appear to be no more than a complaint about the conclusion that the Tribunal reached. On the material before the Tribunal, the conclusion that it reached was clearly open to the Tribunal, and an unsurprising outcome.
The fifth particular relies upon the decision of QAAA of 2004 v Minister for Immigration and Multicultural & Indigenous Affairs [2007] FCA 1918. This is a decision of Collier J in the Federal Court of Australia on an appeal concerning a protection visa. The appellant in that case succeeded on the basis that the Tribunal had acted without evidence in circumstances where the Tribunal concluded that a person who had voluntarily served in the United States Navy (at a time when the United States was described as the ‘sworn enemy’ of Iran) but then concluded that the Iranian authorities would have little or no interest in the appellant because he “only reached the relatively lowly rank of airman”, a reasoning based at least by analogy with low-ranking functionaries of a former Iranian regime. There was no evidence before the Tribunal in that case as to the likely treatment of Iranians who had voluntarily served in the military forces of the United States and the analogy that the Tribunal relied upon was clearly inapt in the particular circumstances. How this applies to the applicant’s case is difficult to understand.
To the extent that the applicant is making complaints about the nature of the decision of the delegate, it is not a ground for judicial review as the delegate’s decision is not the effective decision, but that of the Tribunal.
In the circumstances, I am not persuaded that this ground bears any significant relationship to the decision in this case, nor that it identifies or even indicates an arguable ground for judicial review, let alone one that should succeed. The ground appears to have been drawn by someone other than the applicant who had no real understanding, or insight, into the applicant’s circumstances.
Ground 2
The substance of ground 2 is that the Tribunal considered the PRISM records (the records of the applicant’s education in Australia) and that as a result the applicant was denied procedural fairness in this regard. The ground refers to the decision of the delegate, however, it is the decision of the Tribunal that must be considered in this case.
The PRISMS records were included in a letter sent to the applicant on 15 June 2015 (see court book p.22), and the majority of the records were annexed to the delegate’s decision (see court book p.38), which the applicant provided to the Tribunal as part of her application for review of the delegate’s decision.
In any event, the applicant provided the Tribunal with independent evidence of her completed and current studies (see court book pp.73–102 and court book pp.126–127), and discussed her enrolment with the Tribunal at the hearing as appears in [14] to [23] and [29] of the decision.
Further, there does not appear to be any factual dispute as to the applicant’s study history in this case. The real question was what inference should be drawn from the applicant’s overall circumstances as to her genuineness as a student who would stay temporarily in Australia.
In the circumstances, I am not persuaded that this ground provides basis for judicially reviewing the decision of the Tribunal.
Ground 3
A third ground is that the Tribunal failed to consider and apply Aulakh & Ors v Minister for Immigration & Anor [2017] FCCA 544, a decision of Judge Wilson delivered on 23 March 2017. The ground refers to inconsistencies in the evidence of the applicant. In Aulakh, Judge Wilson reviewed a transcript and evidence before the Tribunal which was concerned whether or not the applicant in that case had been employed at a hairdresser at a particular business premises. His Honour found that the Tribunal’s conclusion was so unreasonable that no reasonable “repository of the power to make such a decision” could have reached the decision that the Tribunal made in that case (a finding of legal unreasonableness).
Nothing has been identified in this case that would indicate that the reasons of the Tribunal as given in the decision do not support the outcome, nor that it was not open to the Tribunal to reach the decision it made.
In oral submissions the applicant claimed that the Tribunal was disbelieving of her in the hearing and did not listen to her. The applicant has not placed a transcript before the Court, nor been able to identify any particular exchanges that would bear upon the outcome in the decision.
In the circumstances, I am not persuaded on the material before me that the applicant can succeed on this ground.
I therefore dismiss the application.
Costs
At the end of the hearing, argument was heard from the parties with respect to potential costs orders depending upon the outcome of the primary matter. The applicant opposed costs orders against her in the event that she was unsuccessful on the basis that she has no capacity to pay a costs order. Costs ordinarily follow the event and there is nothing in this matter to indicate that the usual outcome with respect to costs should not follow.
In this case, the matter was adjourned from the previous day causing costs to be thrown away, for which the Minister claims $500. With respect to the matter generally, the Minister claims costs in the sum of $5,400. Having regard to the cost scale in the Federal Circuit Court, I am satisfied that these are reasonable amounts in the circumstances of this case.
I therefore order that the applicant pay costs in the sum of $5,900.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 30 August 2018
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