Kaur v Minister for Immigration

[2018] FCCA 1213

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1213

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – whether the document was an unauthorised and fraudulent activity by a person holding themselves out to be a migration agent – whether the Tribunal misunderstood the applicant’s claims – whether the applicant did not have a genuine and meaningful opportunity to advance her claims – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 476

Migration Regulations 1994, reg 573.223 of Schedule 2

Applicant: CHINDER PAL KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3508 of 2017

Judgment of: Judge Street

Hearing date: 15 May 2018

Date of Last Submission: 15 May 2018

Delivered at: Sydney

Delivered on: 15 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

On a direct access basis

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: MinterEllison

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3508 of 2017

CHINDER PAL KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 October 2017 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa. 

2. The applicant is a citizen of India who applied for a Student (Temporary) (Class TU) visa on 13 May 2016. In the application form, the applicant completed a section “Assistance with this form.” That section provided a question “did you receive assistance from any person in completing this form” and the applicant, answered “No”. The applicant completed the application identifying the IELTS test she had undertaken in relation to English, achieving a score of 5.5, and the applicant provided both her address and her email address.

3. Following the lodgement of the application, the delegate wrote to the applicant, firstly on 17 May 2016 requesting more information, and information was subsequently provided. On 12 July 2016, a further letter was sent to the applicant seeking further information, following which further information was provided.  The delegate again wrote to the applicant on 2 August 2016 seeking further information, in response to which further information was provided in the nature of a statement dated 9 September 2016 summarising personal details of the applicant and purporting to be signed by the applicant. Relevantly, part of that statement is as follows :

   My future plan to live in Australia on permanent basis after finishes my study.

4. That statement was referred to in the reasons of the delegate delivered on 8 March 2017, sent to the applicant’s address.  The delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily having regard to her circumstances. The delegate’s reasons in that regard expressly referred to the document provided on behalf of the applicant dated 9 September 2016 and summarised part of the contents, including summarising separately the particular reference to the future plan to live in Australia.

The Tribunal

1. On 23 March 2017, the applicant filed an application for review. The applicant was invited by letter dated 22 September 2017 to attend a hearing on 24 October 2017. The applicant appeared on that date to give evidence and present arguments. The Tribunal in its reasons identified the background to the review, and summarised the applicant’s claims and evidence.

2. The Tribunal referred in the present case to the issue being whether the applicant is a genuine applicant for entry and stay as a student having regard to the prescribed matters. The Tribunal in its reasons referred to the delegate having had regard to the academic progress, study history, potential circumstances in Australia, immigration history and value of the course to the applicant’s future, and was not satisfied that the applicant was a genuine temporary entrant.

3. The Tribunal summarised the applicant’s claims and evidence and was not satisfied the applicant was a genuine temporary entrant. Reaching that finding, the Tribunal had regard to the applicant’s evidence to the Department that she intended to remain in Australia permanently. The Tribunal also took into account the applicant’s academic history and her failure to study for an extended period from 16 August 2015 to 27 June 2016, and the consequent breach of condition 8202.

4. The Tribunal also took into account the applicant’s lack of academic progress, and lack of demonstrated commitment to her chosen field of childcare and lack of evidence of the applicant having close ties to India. As a result the Tribunal found the applicant was not a genuine temporary entrant and had been using the student visas to maintain residence in Australia. The Tribunal found the applicant failed to meet the requirements under cl 572.223(1A)(b) of schedule 2 to the Migration Regulations 1994, and affirmed the decision under review.

Before this Court

1. The grounds in the amended application are as follows:

   GROUND 1

   The Tribunal misapprehended / misdirected its inquiries and / or finding lacks rational / logical connection (Tribunal at para 22(d)) in finding that the the Applicant lacked experience and thereby committed jurisdictional error.

   Particulars

   1.1 The Tribunal found that the Applicant had not demonstrated pursuing experience in the field of child care.

   1.2 The Applicant stated that she was interested in operating child care "business" [and not work in the child care field](Tribunal hearing transcript p7) and had discussions with her cousin.

   1.3 The Applicant did not claim to be continuing her studies to attain qualification in child care but to run child care business.

   1.4 The Applicant is advancing the objective by doing business studies.

   1.5 The Tribunal committed jurisdictional error.

   GROUND 2

   The Tribunal's failed to give consideration to and ignore critical evidence when assessing whether the Applicant genuine temporary entrant. The Applicant stated that she intended to pursue Bachelor's degree. This has not been given consideration by the Tribunal.

   Particulars

   2.1   The Tribunal failed to engage with the issue of Applicant’s interest in Bachelor’s degree (transcript p. 7.8 to 7.10).

   2.2   The Tribunal failed to consider this in relation to paragraph 6 - 12 of the Directions 53.

   2.3   The Tribunal failed to give the Applicant meaningful opportunity to give evidence and present arguments in relation to the Applicant's circumstances.

   2.4   The Tribunal committed jurisdictional error.

   GROUND3

   The Tribunal's Decision involved jurisdictional error insofar as the Tribunal failed to comply with s 499(2A) of the Act and Direction No. 53 - Assessing the genuine temporary entrant criterion for Student Visa applications, dated 03 November 2011 commencing 05 November 2011 (Direction 53) and failed to engage with the Directions 53. Alternatively, the Tribunal breached s 360 as it failed to put dispositive issues to the Applicant and failed to carry out meaningful review.

   Particulars

   3.1   The Tribunal failed to engage with paragraph 6 - 12 of the Directions 53. The Tribunal failed to give the Applicant meaningful opportunity to give evidence and present arguments in relation to the Applicant's circumstances.

   3.2   The Tribunal failed to give the Applicant opportunity to address close ties.

   3.3   The value of the qualification to the Applicant.

   3.4   Tribunal failed to properly engage with the issue of close ties.

   3.5 The Tribunal failed to comply with s 360 of the Act.

   3.6   The Tribunal committed jurisdictional error.

   GROUND 4

   The Tribunal's Decision involved jurisdictional error insofar as the Tribunal failed to comply with s 360 and giving meaningful opportunity to explain any gaps in enrolment (at [17]) and thereby breached s 360.

   Particulars

   5.1 The Tribunal failed to engage with the issue of gaps in enrolment.

   5.2 The issue of gaps was determinative issue.

   5.3 The Tribunal committed jurisdictional error.

   GROUND 5

   The Applicant's migration adviser submitted documents that constituted fraud on the Tribunal. The decision of the Tribunal is thereby affected jurisdictional error. The Tribunal constructively failed to exercise its jurisdiction as a result of third party fraud (and thus did not carry out its statutory function). The Tribunal decision was vitiated by the fraud perpetrated on the Tribunal.

   Particulars

   (a)The migration adviser and/ or agent or servant of the migration adviser (Mr Dobaria) forged the Applicant’s signature on a GTE document (CB 86). The signature of the document is not the Applicant’s signature.

   (b)The migration adviser and / or agent or servant of the migration adviser provided the document to the Tribunal purporting to be true statement of the Applicant when the GTE information was forged.

   (c)The migration adviser and/ or agent or servant of the migration adviser prepared the GTE document (CB 135 - 6) purporting to be the documents of the Applicant.

   (d)The migration adviser and/ or agent or servant of the migration adviser provided the GTE document to the Tribunal purporting to be true statement of the Applicant without the knowledge of the Applicant.

   (e)The migration adviser and/ or agent or servant of the migration adviser knowingly and falsely giving these documents to the Tribunal purporting to be the Applicant's document.

   (f)The migration adviser and/ or agent or servant of the migration adviser Knowingly and falsely misled the Tribunal (and the Applicant) by making false representations and/ or providing documents purporting to be Applicant's documents.

   (g)The migration agent and/ or agent or servant of the migration adviser knowingly and falsely holding out the documents to be the Applicant's documents when it was not.

   (h)The Tribunal decision was vitiated by the fraud perpetrated on the Tribunal.

   (i)The Tribunal's decision is affected by jurisdictional error.

Ground 5

1. It is appropriate to firstly address ground 5, as the applicant gave evidence that the signature on the statement dated 9 September 2016 found at page 86 of the Court Book was allegedly not that of the applicant. The applicant asserted the statement was an unauthorised and fraudulent activity by a person holding themselves out as a migration agent.

2. The applicant was cross-examined. The applicant was a highly unimpressive witness. The applicant gave inconsistent evidence in relation to the completion of the form. On the face of the form, it contradicts the applicant’s evidence that she received assistance. I accept that the applicant did receive assistance from the person who described themselves as a migration agent, and I accept that the applicant paid that person. I do not accept the applicant’s evidence that it is not her signature at page 86 of the Court Book. The signature bears a stark similarity to the signature on the applicant’s passport at page 74 of the Court Book.

3. The Court finds the applicant was not a credible witness and was evasive in the answers that she gave. In particular, when the applicant’s attention was drawn to the fact that the statement was quoted in the delegate’s decision the applicant suggested that she had read the decision mostly but had not read that part referring to the form dated 9 September 2016. I do not accept that answer was true. I do not accept the applicant’s assertion that she was not aware of the content of the document that was referred to in the delegate’s reasons. The applicant clearly recognised the significance of that material being included in the delegate’s decision and was seeking to be evasive in relation to her explanation about reading the delegate’s decision. It was obvious to the applicant that the statement was a document that if it had been false, and she had read the document, her failure to raise it before the Tribunal is inexplicable. I find the applicant’s failure to raise it, if it was said to be forged, to be inexplicable before the Tribunal. No such issue was raised by the applicant. I do not accept that the statement was an unauthorised document by the agent. I do not accept the statement was not signed by the applicant. 

4. Even if the Court’s findings are wrong in relation to the signature of the statement, the applicant had authorised the agent to provide information to the delegate and the applicant in the course of her evidence suggested that she had asked the agent to show her the documents. The applicant then indicated that she did not seek to have the agent show her documents that were being completed. The applicant’s indifference to what was being provided by the agent to the delegate means that there was no relevant fraud.

5. The document the subject of quotation by the delegate was also provided, albeit with a different date and unsigned to the Tribunal, after the Tribunal’s communication inviting the applicant to attend the hearing. That document, in identical terms dated 17 October 2017, the Court finds was provided by the applicant. Even if the document were in fact provided by the applicant’s agent, the Court finds the application had authorised the agent to provide documents to the Tribunal and that the applicant was indifferent in relation to the content of the documents provided. There was no fraud upon the Tribunal and the Tribunal’s review was not vitiated by reason of any alleged unauthorised conduct by the allegation migration agent. I find any conduct by the agent in providing the signed statement to the delegate and the statement to the Tribunal was authorised by the applicant. I find the applicant signed the statement given to the delegate. Ground 5 of the amended application fails to make out any jurisdictional error.

Ground 1

1. In relation to ground 1, Mr Kumar submitted that the Tribunal had misunderstood, or misapprehended, the applicant’s claims about being interested in operating a childcare business in India. Mr Kumar took the Court to the Tribunal’s reasons in paragraph 22(d) in which the Tribunal found the applicant had not directly demonstrated any commitment to pursuing meaningful work experience in her chosen field of childcare or childcare management and the Tribunal’s finding that the last time the applicant worked in childcare was in 2014 and in Sydney she worked for a dry cleaner up until July 2017, when she went to India.

2. Mr Kumar contended that the findings of the Tribunal misunderstood the applicant’s interest in pursuing a business diploma so as to assist her in running a childcare business. Mr Kumar took the Court to passages in the transcript where the applicant referred to wanting to open a business in childcare and that the applicant contended that completing her business diploma would advance that ability. The Tribunal’s reasons do not reflect any misapprehension or misunderstanding of the applicant’s claims. The Tribunal expressly referred to the applicant identifying her chosen field being childcare, and found that apart from the courses she did in Melbourne that finished in 2014, the applicant had not demonstrated an ongoing interest in that field.

3. The Tribunal expressly referred to the applicant’s intention referred to in the transcript to open a childcare centre in paragraph 20 of the Tribunal’s reasons and the Tribunal observed that it would be reasonable to think that if she genuinely intends to do so she might work in the field to obtain relevant experience. The Tribunal made express reference to what the applicant had said in the document dated 9 September 2016 in relation to planning to live in Australia on a permanent basis and found that the claims that the applicant intends to open a childcare centre were not credible. Mr Kumar suggested that there was a difference between being interested in the childcare field and a childcare business. It is apparent on a fair reading of the Tribunal’s reasons that the Tribunal understood the applicant’s intention expressed in her evidence that she wished to start a childcare business. It was open to the Tribunal to take into account the absence of work by the applicant in that field to obtain relevant experience.

4. It is apparent that the Tribunal referred to the diploma of business that the applicant was undertaking and did not misunderstand or misdirect itself in the adverse findings made in paragraph 22(d). Those adverse findings were open for the reasons given by the Tribunal. The applicant’s explanation that the business diploma would assist her in a childcare business was not one that was misunderstood by the Tribunal and was not one that makes the adverse findings by the Tribunal irrational or unreasonable. No jurisdictional error as alleged in ground 1 of the amended application is made out.

Ground 2

1. In relation to ground 2, Mr Kumar submitted that there was a failure to genuinely engage with the applicant’s submissions and evidence and that the applicant did not have a genuine and meaningful opportunity to advance her claims. The applicant was notified by the Tribunal in the invitation letter sent to the applicant dated 22 September 2017 that she was invited to give evidence and present arguments and attention was drawn to documents that the applicant might bring.

2. The transcript of the hearing before the Tribunal has been tendered before the Court. The transcript does not support the submission that the applicant did not have a real and meaningful opportunity to give evidence and present arguments. Further, the Tribunal’s reasons did engage with the applicant’s submissions and evidence and expressly referred to the business diploma, but made adverse findings that were open to the Tribunal in relation to the applicant not being a genuine temporary entrant. The reasons given by the Tribunal eminently support the adverse findings in that regard. The Tribunal did not ignore any critical evidence and did not fail to take into account the business diploma or the applicant’s evidence in that regard.

3. Rather, the Tribunal took into account cogent and relevant matters that were open to the Tribunal. The applicant had a real and meaningful opportunity to give evidence and present arguments, and I accept the first respondent’s submission that on the face of the Tribunal’s reasons, the Tribunal took into account the Direction No. 53 “Assessing the genuine temporary entrant criterion for Student Visa applications” because of the topic headings addressed and content of the Tribunal’s reasons. I do not accept that the Tribunal failed to consider paragraphs 6 to 12 of Direction 53. No jurisdictional error as alleged in ground 2 of the amended application is made out.

Ground 3

1. In relation to ground 3, Mr Kumar submitted that the Tribunal had failed to comply with s 499(2)A of the Act and Direction 53.  For the reasons I have just given, it is apparent that the Tribunal took into account and complied with Direction 53. In particular, the value of the qualifications of the applicant was expressly referred to at paragraph 22(c) of the Tribunal’s reasons where the Tribunal was not satisfied on the evidence, that the course the applicant was enrolled in would see the applicant progress further academically as she claimed it would. The Tribunal also referred to the Direction in relation to close ties at paragraph 22(e) of the Tribunal’s reasons.

1. The Tribunal complied with the statutory obligation to invite the applicant to attend a hearing and the transcript tendered before the Court supports the applicant having a real and genuine opportunity to give evidence and present arguments. There was no breach of s 360 of the Act on the material before the Court and there was no failure to take into account Direction 53. It is apparent from the Tribunal’s reasons that the Tribunal raised with the applicant the activities that the applicant had been undertaking and issues relevant to whether the applicant was a genuine temporary entrant. No jurisdictional error as alleged in ground 3 of the amended application is made out.

Ground 4

1. In relation to ground 4, Mr Kumar again submitted that there had been a failure to give the applicant a real and meaningful opportunity to engage with the Tribunal’s reasons in relation to the gaps in the applicant’s enrolment. It is apparent that these were not merely gaps. Rather, there was a non-compliance by the applicant with her visa conditions from 2015 to 2016 and the applicant did not study during the period as required by condition 8202. 

2. The Tribunal’s reasons reflect taking into account the applicant’s study history and the transcript reflects the Tribunal exploring with the applicant the course that she had undertaken. The Tribunal raised with the applicant the study that she was proposing to undertake, and her knowledge of the courses she was about to undertake. The Tribunal also explored with the applicant the qualifications and courses she had undertaken before she came to Australia and the diplomas that the applicant had then undertaken. 

3. On the face of the material before the Court, the applicant had a real and meaningful opportunity to give evidence and present arguments. I do not accept there was any breach of s 360 of the Act.  No jurisdictional error as alleged in ground 4 of the amended application is made out. 

Conclusion

1. As the amended application fails to make out any jurisdictional error, accordingly, the amended application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 14 June 2018