KAUR v Minister for Immigration

[2017] FCCA 1916

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1916

Catchwords:
MIGRATION – Application for judicial review – student visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

First Applicant: MANPREET KAUR

Second Applicant: SUKHDEEP SINGH KANWAR

Third Applicant: HARKIRAT SINGH KANWAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2130 of 2016

Judgment of: Judge Riethmuller

Hearing date: 19 July 2017

Date of Last Submission: 19 July 2017

Delivered at: Melbourne

Delivered on: 19 July 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2130 of 2016

MANPREET KAUR

First Applicant

SUKHDEEP SINGH KANWAR

Second Applicant

HARKIRAT SINGH KANWAR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 13 September 2016.  The decision affirms the decision of the delegate with respect to the applicant’s Student (Temporary) (Class TU) Subclass 572 visa application. 

2. The applicant entered Australia on 25 November 2011 as the holder of a student visa and has held visas since that time.  Her visa application, the subject of the AAT’s decision was made on 25 March 2015.  On 19 May 2015, the delegate refused her application, having regard to Ministerial Direction 53.

3. In June 2015, the applicant sought review before the Tribunal and attended in person to make arguments and submissions.  Importantly, a number of written submissions were made which are attached to the application for judicial review that appears in the court book at pages 70 and 151. 

4. The Tribunal was concerned as to whether or not the applicant was a genuine temporary entrant and considered each of the areas described in Ministerial Direction 53.  It summarised the main considerations it was required to have regard to at para.8 as follows:

   8. As was explained in that 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 courses to your future

   ·   Your immigration history

   ·   Your incentive to stay in Australia or return home

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

   ·   Any other relevant matters

5. There is no question that the applicant was on notice that these were the key issues for determination for the Tribunal having regard to the invitation letter and the decision of the delegate. 

6. The Tribunal then traversed the various circumstances of the applicant, significantly that she had made very poor progress in her Bachelor of Nursing course, having completed only five units in five semesters, and also traversed some of the details relating to her personal history.

7. In the judicial review proceedings, the applicant relies upon the following grounds:

   1. My 573 visa application was refused by the immigration department and further the review application was also refusedby MRT as they affirmed the application by the department.

   2. I requested for the hearing outcome and I only received an oral outcome and the letter sent to me also mentioned oral outcome.

   3. Now they have assured me that a CD will be posted out but I am running out of time to lodge the judicial review application.

   4. I have also further provided an explanation letter which explain all the circumstances that led to my visa refusal.

   5.Kindly reconsider all the supporting documents and reconsider my decision and remit my application to the M & R Division. 

8. None of these are specific grounds for judicial review.  At the hearing, I inquired of the applicant, and she said that her main source of complaint was that the Tribunal did not have regard to her personal circumstances.  It seems to me that the Tribunal did have regard to various unfortunate events that had happened in her life, saying:

   23. You claim you have been psychologically upset and unable to concentrate on studies following an earlier miscarriage, the death of two cousin brothers in India and the fact your mother suffers epilepsy.

   24. I give little weight to these claims as despite it being noted in the primary decision, you provided no evidence you sought any support for these matters at the time.  In fact when I asked you today you confirm that you sought no support saying that your husband was here to help you.

9. These events were seen by the Tribunal in the context of the fact that the applicant remained in Australia for a significant period despite various family events happening in her home country, as the Tribunal said:

   34. When considering your incentive to return or stay, the Tribunal notes, as was noted in the primary decision you have not returned home since first arriving in Australia despite the fact that your sister was married back home and you say there were a range of things that happened including your cousin brothers being killed in accidents, and your mother not being well.

10. Ultimately, the Tribunal was not persuaded that she was a genuine student, having regard to her various circumstances, and, significantly, the poor progress that she had made in her course.  In these circumstances, I am not persuaded that the applicant has an arguable case for judicial review on the basis of the Tribunal failing to have regard to her personal circumstances.

11. At the hearing before me, the applicant also sought to tender material to show that she has since passed her nursing degree in order to demonstrate that she is a genuine student.  That material was not provided to the Tribunal and, in fact, was not available at the time of the Tribunal hearing, having only become available since then.  It is not open to me to accept evidence of events that have taken place since the Tribunal hearing in judicial review proceedings. 

12. In these circumstances, I am not persuaded that the applicant has been able to articulate an arguable case for judicial review, and therefore it is appropriate that I dismiss the application.

    [Further argument ensued]

13. In this matter, the applicant has been unsuccessful.  In these circumstances the costs ordinarily follow the event.  The Minister seeks $3,200, which is within the scale fee.  I find that that is a reasonable sum and order that the applicant pay the Minister’s costs fixed at $3,200.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  23 August 2017

Corrections

1. On page 1 of the Cover Sheet and page 1 of the Reasons for Judgment the name of the Second Applicant has been amended from KANKAR SUKHDEEP SINGH to SUKHDEEP SINGH KANWAR.

2. On page 1 of the Cover Sheet and page 1 of the Reasons for Judgment the name of the Third Applicant has been amended from KARKIRAT MASTER KANKAR SINGH to HARKIRAT SINGH KANWAR.