KAUR v Minister for Immigration

[2017] FCCA 3262

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3262

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 572) visa – where Applicant seeks impermissible review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.368D.

Federal Circuit Court Rules 2001 (Cth) rr.44.11, 44.12.

First Applicant: RAMANDEEP KAUR

Second Applicant: AMANDEEP MEHTA

Third Applicant: ARMAAN MEHTA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2694 of 2016

Judgment of: Judge Hartnett

Hearing date: 9 November 2017

Delivered at: Melbourne

Delivered on: 20 December 2017

REPRESENTATION

The Applicants: In Person

Solicitor for the First Respondent: Ms Nyabally

Solicitors for the First Respondent: Mills Oakley

ORDERS

1. The application is dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2694 of 2016

RAMANDEEP KAUR

First Applicant

AMANDEEP MEHTA

Second Applicant

ARMAAN MEHTA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 24 November 2016.  By that decision the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) dated 6 August 2015 to refuse to grant to the First Applicant (‘the Applicant’) a Student (Temporary) (Class TU) (Subclass 572) visa (‘the visa’).  

2. The grounds of application are as follows:-

   “1. The Tribunal took account of irrelevant considerations and failed to take account of relevant considerations.

   Particulars

   Tribunal failed to have regard to relevant factors and took account of irrelevant factors when assessing whether the applicant was a genuine temporary entrant and a genuine student. 

   2. The Tribunal failed to properly consider all the relevant matters set out in Ministerial Direction Number 53.

   Particulars

   Ministerial Directions 53 sets out all the relevant matters that the Tribunal must consider in determining whether the applicant meets the genuine temporary entrant requirement. The Tribunal failed to have regard to the applicant’s circumstances in her home country, the Applicant’s potential circumstances in Australia, the applicant’s immigration history and the value of the applicant’s course to her future; 

   3. The Tribunal failed to issue any written reasons for its decision.

   Particulars

   The failure of the Tribunal to publish written reasons for its decision constitutes a denial of natural justice and procedural fairness.”

3. The Court has before it additionally the response filed by the First Respondent dated 19 December 2016 wherein the First Respondent asserts the grounds pleaded by the Applicants cannot succeed in the absence of any particulars to make them meaningful, and further, that the application for judicial review fails to establish any jurisdictional error in the decision of the Second Respondent dated 24 November 2016. The First Respondent seeks an order that the First and Second Applicants pay the First Respondent’s costs in a fixed amount. 

4. The Court has before it the evidence as contained in the Court Book. Therein is a written record of the Tribunal decision dated 21 December 2016 which followed the giving of an oral decision and reasons on 24 November 2016. 

5. The First Respondent has filed submissions dated 2 August 2017; the Applicant filed on 27 October 2017 an outline of submissions which are undated. The Court notes in respect of the annexures to the Applicant’s submissions that such annexures are not admissible in these proceedings being material that was not before the Tribunal.

6. On 7 June 2017, Registrar Allaway made orders relevantly, that the First Applicant is appointed as the litigation guardian of the Third Applicant, and that pursuant to r.44.11(c) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’), a hearing under r.44.12 be dispensed with and the application be listed for final hearing.

Background 

1. On 26 June 2015 the Applicant lodged an application for a Student Temporary (Class TU) (Subclass 572) visa.  The Applicant listed the Second and Third Applicants as members of the Applicant’s family unit. The Applicant also provided the Department of Immigration and Border Protection (‘the Department’) with a range of supporting documentation, including copies of pages from the Applicants’ passports; a marriage certificate; the Third Applicant’s birth certificate; medical documentation; education documentation from India;  a confirmation of enrolment for a Diploma of Hospitality and Certificate IV in Commercial Cookery; the Applicant’s IELTS test report form dated 9 May 2015;  and education results and documents from Australia.

2. On 2 July 2015 the Department wrote to the Applicant and requested that she provide additional information, including evidence of previous and current employment, a resume, a statement responding to the genuine temporary entrant criterion, and evidence of the Applicant’s financial capacity and income. The Applicant did not respond to this request to provide further information. 

3. On 6 August 2015 the delegate refused to grant the Applicant a student visa as the delegate was not satisfied that the Applicant was a genuine Applicant for entry and stay as a student. 

4. In particular, the delegate found that the Applicant’s “pattern of study and immigration history”[1] coupled with additional considerations was “suggestive of someone who is utilising the student visa program…to maintain ongoing residency in Australia.”[2]  The delegate also found the Applicant did not meet the criteria for the other subclasses of student visas. 

   [1] Decision Record dated 6 August 2015, page 3.

   [2] Decision Record dated 6 August 2015 at page 3.

The Tribunal proceedings

1. On 25 August 2015 the Applicant applied to the Tribunal for a review of the delegate’s decision.  The review application attached a range of supporting documentation, including copies of pages from the Applicants’ passports together with the delegate’s Decision Record.

2. By letter dated 18 October 2016 the Tribunal validly invited the Applicant to attend a hearing scheduled before it on 24 November 2016.  The Applicant responded to the hearing invitation and provided additional evidence to the Tribunal, including confirmation of her enrolment in the Diploma of Hospitality; and completion documents and a transcript for her Certificate IV in Commercial Cookery.  On 12 November 2016 the Applicant also provided a copy of her resume. 

3. The Applicants attended the hearing on 24 November 2016.  On that day the Tribunal delivered an oral decision affirming the Delegate’s decision not to grant the Applicant the visa. 

4. On 15 December 2016 the Tribunal was requested to provide a written record of its reasons and decision.  On 22 December 2016 the Tribunal provided the Applicant with a written record of its decision dated 21 December 2016.

The Tribunal’s Statement of Decision and Reasons (‘the Decision Record’)

1. The Tribunal commenced by accurately noting that to be eligible for the grant of a student visa the Applicant was required to be both a genuine temporary entrant and genuine student. To be a genuine temporary entrant the Applicant’s circumstances needed to support a genuine intention to remain in Australia temporarily.

2. The Tribunal noted that the Applicant applied for a student visa on 26 June 2015. With respect to the relevant factors in Ministerial Direction No. 53 the Tribunal accurately summarised those relevant factors and, in respect thereto, said, as set out in the Decision Record, as follows:- 

   “8. As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant, it is necessary to have regard to what is known as Ministerial Direction No.53 and the issues in that direction. They were detailed in the primary decision and they include:

   ·   Your circumstances;

   ·   The value of your course/s to your future;

   ·   Your immigration history;

   ·   Your incentive to stay in Australia or return home;

   ·   If you are using the student visa program to maintain ongoing residence in Australia;

   ·   Any other relevant matters

   9. This is not meant as a checklist but as a guide to weigh up an Applicant’s circumstances as a whole in reaching a finding about whether an applicant satisfies the genuine temporary entrant criterion.

   10. The role of the Tribunal is to take a fresh look at your application, consider your circumstances and the issues in Direction No.53 and be satisfied you are a student who genuinely intends to stay in Australia temporarily. 

   11. You told the Tribunal you had read and understood the primary decision which was discussed in detail at today’s hearing. 

   12. The primary decision and its detailed references to the issues of Direction No.53 put your [sic] notice of the issues in your case.  When we sent you the hearing invitation we advised that we would assess whether you met the genuine temporary entrant requirements and asked you to provide a statement addressing the issues in Direction No.53.”

3. The Applicant claimed in submissions provided by her to the Tribunal that she had been living in Australia for six years and “just liked it here”. The Tribunal noted that the Applicant stated that the student visa she had applied for was to complete her education and become a professional team member or leader in the hospitality industry.  When questioned by the Tribunal about her future plans the Applicant indicated she wished to go back to India to open a restaurant, but could not provide specific details or plans for a restaurant at all as found by the Tribunal.

4. During the course of the Tribunal hearing on 24 November 2016 the Applicant responded to a range of questions put to her by the Tribunal member that went to the issues in Direction No.53. The Tribunal considered those responses as set out in the Decision Record.  The Applicant indicated that she had initially come to Australia to experience the culture.  In this respect the Tribunal noted that study appeared to be a secondary consideration. It considered the Applicant’s evidence that when she arrived in Australia, her initial course provider had shut down. The Tribunal found that rather than enrolling in an equivalent course to the Diploma of Community Welfare Work in which she had previously enrolled, the Applicant instead studied an English Language Intensive Course for Overseas Students (ELICOS) where she met friends who were studying hairdressing and commercial cookery. The Tribunal traversed the Applicant’s subsequent study history which involved commercial cookery courses, a diploma of dental technology, and a number of business and management courses. The Tribunal queried why the Applicant completed these courses which had no relationship to one another or her previous studies or experience, and found the Applicant was unable to provide a satisfactory answer.

5. The Tribunal did not accept the Applicant’s claim that by returning to her studies in commercial cookery and hospitality she was completing what she came here to do, noting that she came to Australia as a nurse to study community welfare work.  The Tribunal found the Applicant’s proposed courses did not relate to her previous studies or experience and that the Applicant could not explain how they related to each other except to state that she wished to open a restaurant.  The Tribunal did not accept the Applicant’s courses were related, and noted that she had not progressed beyond vocational education and training, VET level courses, which were “a series of short, inexpensive courses” and did not advance beyond the advanced diploma level.

6. The Tribunal found at paragraph 32 of the Decision Record:-

   “I am not satisfied you have demonstrated how your proposed courses are relevant to your academic or employment background and I don’t believe that what you are doing will substantially improve your future employment prospects or remuneration levels in India or any other country.”

7. The Tribunal found the Applicant did not provide any persuasive reason as to why she could not complete her proposed studies in India and considered that the relative economic circumstances in India and Australia provided an incentive to the Applicant to remain in Australia.  The fact that she had only returned home to India once in the almost eight years since coming to Australia indicated that she did not have strong ties to India or an incentive to return home.

8. The Tribunal concluded in paragraphs 35 and 36 of the Decision Record as follows:- 

   “35. This is your fifth application for a student visa and you seek to remain here at a minimum until next year, bringing your total time in Australia on a student visa to over eight years.  Despite the considerable stay you have not completed any courses beyond the VET sector. 

   36. Having considered your circumstances in Australia, including the issues in Direction No.53, I am not satisfied you are a genuine student who intends to stay temporarily in Australia.  Therefore, I find you do not meet clause 572.223(1)(a).”

Consideration 

1. The Tribunal affirmed the decision under review.  Its findings were open to it on the evidence before it.  Its reasons were logical and reasonable and no jurisdictional error is revealed.

2. Specifically, ground one fails, as submitted by Counsel for the First Respondent, at a factorial level and invites the Court to undertake in the circumstances of this case impermissible merits review.  The factors which the Tribunal allegedly overlooked or considered in error were not identified by the Applicant. In reaching its decision the Tribunal had express regard to the Applicant’s written submissions and oral evidence. It considered, as it was required to, all relevant matters and the claims and evidence as put before it by the Applicant.   

3. In respect of ground two, the Tribunal accurately summarised the relevant factors in Direction No.53; confirmed that the Applicant understood the content and purpose of Direction No.53; and considered the Applicant’s circumstances and evidence against those factors.  The factual findings made in that assessment were open to the Tribunal on the evidence before it. 

4. In respect of ground three the Tribunal is expressly permitted to deliver its decision on review orally.[3]  It was open to the Applicant to request the Tribunal’s oral decision be reduced to writing and supplied to the Applicant.  The Tribunal did so within the requisite time limit and no denial of natural justice or procedural fairness arises. 

   [3] Migration Act 1958 (Cth) s.368D.

5. Following the hearing, the Applicant provided to the Court an audio recording of the Tribunal hearing. The Court has listened to this audio recording. It did not advance the Applicant’s case. It reinforced that the Tribunal had done that which it was required to do in undertaking the review.

6. The application will be dismissed and costs shall follow.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 20 December 2017