KAUR v Minister for Immigration
[2018] FCCA 811
•13 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 811 |
| Catchwords MIGRATION – Student (temporary) (class TU) subclass 572 visa – whether applicant failed to show that she intended genuinely to stay in Australia temporarily. |
| Legislation Migration Act 1958, s.499 |
| Cases cited AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 Craig v State of South Australia (1995) 184 CLR 163 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 |
| First Applicant: | CHARNJEET KAUR |
| Second Applicant: | JASWINDER SINGH |
| Third Applicant: | JAPNEET SINGH BAINS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2039 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 6 March 2018 |
| Date of Last Submission: | 6 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 13 March 2018 |
REPRESENTATION
| First Applicant: | In person |
| Solicitors for the First Applicant: | None |
| Second Applicant: | No appearance |
| Solicitors for the Second Applicant: | None |
| Third Applicant: | No appearance |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application filed 8 September 2015 dismissed.
The applicant pay the respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2039 of 2015
| CHARNJEET KAUR |
First Applicant
| JASWINDER SINGH |
Second Applicant
| JAPNEET SINGH BAINS |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
The issue in this case was whether the Administrative Appeals Tribunal fell into jurisdiction error in affirming a decision of the minister’s delegate not to grant the first application a student (temporary) (class TU) subclass 572 visa. The tribunal was not satisfied that the first applicant intended to genuinely stay in Australia temporarily with the consequence that the first applicant failed to meet the requirements of cl.572.223(1)(a) of the Migration Regulations (“Regulations”).
The second applicant is the first applicant’s husband. The third applicant is their child. The second and third applicants’ status in this proceeding is dependent upon the outcome of this case in relation to the first applicant.
Synopsis
For the reasons that follow, in my judgment the tribunal did not fall into jurisdictional error. This proceeding should be dismissed. The first applicant must pay the minister’s costs.
Short factual recital
On 2 April 2012 the first applicant applied for the relevant visa. She had earlier applied offshore for a student visa that was granted, pursuant to which she arrived in Australia on 25 June 2009. The history of her visa applications was a little involved. Let me go to it at once.
On 22 May 2009 the first applicant was granted her initial student (temporary) (class TU) subclass 572 visa valid until 25 April 2011. On 24 May 2011 the first applicant was granted a further student (temporary) (class TU) subclass 572 visa onshore, valid until 5 April 2012. On 2 April 2012 the first applicant applied for a further student (temporary) (class TU) subclass 572 visa. She was then enrolled to undertake a diploma of management, a diploma of marketing, and an advanced diploma of marketing. On 9 July 2012 the visa application of relevance to this case was refused by the minister’s delegate on the basis that the first applicant did not meet the requirements of cl.572.223 and cl.572.224 of the Regulations. Upon seeking a merits review, the Migration Review Tribunal remitted the visa application to the minister’s delegate for reconsideration.
The first applicant’s visa application was reassessed on 29 September 2014. At that time the first applicant was enrolled to undertake a certificate IV course in commercial cookery and a diploma of hospitality. The PRISMS[1] records then available indicated that the first applicant did not study from 17 December 2012 to 6 July 2014. The PRISMS records also showed that the first applicant was enrolled as at 23 January 2015 in a diploma of hospitality in which she was enrolled in 2010 and 2011 yet chose not to study. That appeared to have alerted the delegate to the genuineness of the first applicant’s intentions to study the course in question.
[1] Provider Registration and International Student Management System
In its decision made 23 January 2015 the minister’s delegate refused the first applicant’s visa application because the first applicant did not meet the requirements of cl.572.223(1)(a) of the Regulations.
The applicants applied to the tribunal for a merits review. The tribunal affirmed the delegate’s decision mainly on account of the tribunal not being satisfied that the applicant intended genuinely to study in Australia temporarily. In reaching that conclusion the tribunal reasoned as follows –
a)Direction No 53 required the tribunal to have regard to four specific issues that the tribunal identified in paragraph 3 of its reasons;
b)those factors were not a checklist but they guided the decision-maker on the issue of whether an applicant satisfied the genuine temporary entrant criteria;
c)the tribunal stated it had considered all factors in Direction No 53 including the circumstances in the first applicant’s home country, her potential circumstances in Australia, the value of the course to the first applicant’s future and her immigration history;
d)the first applicant gave evidence of having completed a certificate III in hospitality, a certificate IV in business, and a diploma of management, the last of which was in December 2012;
e)the first applicant gave birth to a child while in Australia and that baby had health difficulties;
f)the first applicant’s mother had health difficulties leading to financial consequences for the first applicant; and
g)the first applicant’s other family members live in India.
The tribunal engaged in the task of identifying factors that weighed in favour of the first applicant’s arguments and then it identified factors that weighed against the first applicant’s arguments. Among the factors in the first applicant’s favour, the tribunal listed the following –
a)she completed the courses recorded above and was making appropriate progress in her studies of the certificate IV qualification in commercial cookery;
b)while in Australia she gave birth to a baby that later encountered health issues;
c)she experienced financial difficulties due to the ill health of her mother and that affected her ability to pay for her studies in 2010 and 2011; and
d)other than her husband and child, her family resides in India.
So far as factors that weighed against the applicant were concerned, the tribunal listed them in paragraph 13 of its reasons. Relevantly distilled, they were as follows –
a)the first applicant, while the holder of a student or bridging visa from May 2009, did not undertake any studies from December 2012 to July 2014;
b)to the extent that the first applicant’s failure to undertake studies in that period was referrable to her inability to concentrate by reason of her baby’s health issues and her appeal to the Migration Review Tribunal, the first applicant did not submit any evidence about her child’s health and the tribunal was not satisfied that her stress level was so severe as to prevent her from undertaking any study at all in that period;
c)the tribunal did not accept the first applicant’s version of events that she applied to other colleges seeking enrolment but that those other colleges refused her enrolment unless she had a valid student visa; and
d)the tribunal said the first applicant had study rights during the time the applicant said other colleges refused her enrolment.
In paragraph 14 of its reasons the tribunal said it had taken into account how the applicant had enrolled in a number of short courses including courses in printing, graphic arts and hairdressing.
The tribunal was not satisfied that the first applicant’s enrolment in a certificate IV course in commercial cookery and a diploma of hospitality would assist her in obtaining employment or improve her prospects in India.
In paragraph 16 the tribunal stated that the first applicant’s husband and child being in Australia was an incentive not to return to India.
The tribunal concluded the first applicant did not satisfy cl.572.223(1)(a) of the Regulations. It decided to affirm the decision of the delegate not to grant the applicant the visa she sought.
Application for judicial review
On 8 September 2015 the applicants applied to this court for orders for the issue of constitutional writs. They advanced one long narrative as their ground of application. It is as well to record it verbatim as follows –
I applied for student temporary class TU visa on 2 April 2012. My visa application was refused by department on 23 January 2015 on the basis that I did not meet the visa requirements. I also applied for review application to the Tribunal. I appeared before the Tribunal and presented documents in support of my visa application and informed the Tribunal that I am a genuine student who have already completed Certificate III and IV in Commercial Cookery, Certificate IV in Business and diploma of management. I was also enrolled in Diploma of hospitality management. I also informed to the Tribunal that my mother was unwell due to which I could not continue my study. However, the Tribunal did not consider me as a general student and affirm the decision. I am not satisfied with the decision made by AAT on my application. I believe there is an error. Therefore, I want to appeal against the decision in the Court.[2]
[2] Application filed 8 September 2015 at ‘grounds of application’
Nowhere did the applicants set out the factual and legal basis by which they contended that the tribunal had fallen into jurisdictional error of the sort canvassed in such cases as Craig v State of South Australia[3] or Kirk v Industrial Court.[4] Further, it was not possible to tell from an examination of the applicants’ statement in the grounds of review whether the expression of their dissatisfaction was, in reality, a genuine grievance or whether they were unhappy about the result of the tribunal’s outcome.
[3] Craig v State of South Australia (1995) 184 CLR 163
[4] Kirk v Industrial Court (NSW) (2010) 239 CLR 531
In the third last line of the ground of review, the applicant stated as follows –
I believe there is an error.[5]
[5] Application filed 8 September 2015 at ‘grounds of application’
No particulars were given of that statement. The fact of there being no particulars entitled me on the hearing of an application for judicial review to dismiss the proceeding. Four decisions of the Federal Court have held as much, those being the decision of Siopis J in WZATH v Minister for Immigration and Border Protection,[6] the decision of Logan J in BHK15 v Minister for Immigration and Border Protection,[7] the further decision of Logan J in AQN15 v Minister for Immigration and Border Protection[8] and the decision of Gilmour J in WZAVW v Minister for Immigration and Border Protection.[9] In this case the alleged error was not particularised. I was not able to assess whether the alleged error was one of fact or whether it was an alleged jurisdictional error. On the basis of the holdings in WZATH, BHK15, AQN15 and WZAVW this proceeding was amenable to dismissal on the basis that the relevant error was not particularised.
[6] WZATH v Minister for Immigration and Border Protection [2014] FCA 969
[7] BHK15 v Minister for Immigration and Border Protection [2016] FCA 569
[8] AQN15 v Minister for Immigration and Border Protection [2016] FCA 571
[9] WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
However, the first applicant appeared before me in person assisted by an interpreter. The first applicant’s command of the English language was very good. She sought assistance only once from the interpreter. Nevertheless, she was a litigant in person who did not have the benefit of legal assistance in this case. I recognise that she was most unlikely to have been familiar with the subtleties of migration litigation. Accordingly, I asked the first applicant to tell me in her own words what she said the tribunal did wrong. It struck me that it would only serve to confuse her by introducing concepts of jurisdictional error in my discussions with her. She said the tribunal failed to take into account the ill health of her mother. Mr Brown (the minister’s solicitor who appeared) took me to the medical certificate among the documents in the court book. It revealed that a medical practitioner in Punjab had certified that the first applicant’s mother was admitted to hospital on 5 February 2011 then was discharged on 3 March 2011. On 5 July 2011 she was operated on for an appendix procedure and was discharged two weeks later.
The relevant two-year period of concern to the tribunal in this case was December 2012 to July 2014. The first applicant’s mother’s hospitalisation or ill health preceded that period. In any event, the tribunal duly considered the issue of the first applicant’s mother’s ill health. It stated in paragraph 12 of its reasons that it was willing to treat the issue as one of the matters in the applicant’s favour. Yet despite that matter being considered in her favour, the tribunal nevertheless took the view that the study gap from 17 December 2012 to 6 July 2014 was a very significant time which, when considered with the matters set out in Direction No 53 (mandatory considerations for the purposes of s.499 of the Migration Act) persuaded the tribunal to the view that the applicant did not intend genuinely to study in Australia temporarily.
Far from there being an error in that process of reasoning, it was entirely proper. I do not agree that the tribunal exhibited error. Nor did it fall into jurisdictional error.
To the extent that the applicant invited me to undertake a merits review, I am forbidden from doing so on an application for judicial review as was held in the High Court decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[10] Attorney-General (NSW) v Quin,[11] and others.
[10] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 25
[11] Attorney-General (NSW) v Quin (1990) 170 CLR 1
Conclusion
This application for judicial review failed. I dismiss the proceeding and order the applicants to pay the minister’s costs fixed in the sum of $5,000.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 23 April 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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