KAUR v Minister for Immigration

[2016] FCCA 2544

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2544

Catchwords:
MIGRATION – Review of a decision of the Second Respondent – application for a Student (Temporary) (Class TU) Subclass 572 visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg. 572.223(1)(a)

Cases cited:
SZBYR v Minister of Immigration and Citizenship (2007) 235 ALR 609

Applicant: SWARANJIT KAUR

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEAL TRIBUNAL

File Number: MLG 2234 of 2015

Judgment of: Judge McNab

Hearing date: 28 September 2016

Date of Last Submission: 28 September 2016

Delivered at: Melbourne

Delivered on: 28 September 2016

REPRESENTATION

The applicant in person

Counsel for the Respondent: Mr Young

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed on 1 October 2015 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 2234 of 2015

SWARANJIT KAUR

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT DELIVERED EX-TEMPORE ON 28 SEPTEMBER 2016

Introduction

1. By an application filed on 1 October 2015, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 17 September 2015 to affirm a decision of the delegate of the first respondent not to grant a Student (Temporary) (Class TU) Subclass 572 visa. 

2. Prior to the matter commencing, I asked the applicant whether she was in a position to proceed with the application this morning and she confirmed that she was. I asked this question, as there had been some correspondence which had been provided to the court where it was suggested she was unwell.  In light of her response to my question, the court proceeded to deal with the matter. The applicant appeared unrepresented and made brief submissions to the court in which did not add to the matters set out in her application. 

3. In order to succeed in her application to this court, the applicant must show jurisdictional error on the part of the Tribunal. The application filed on behalf of the applicant raises two grounds of application, these being:

   a)that the Tribunal misconstrued cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) in finding that the applicant is not a genuine temporary entrant;

   i)that although the Tribunal accepts that the applicant did not have gaps of enrolment or study and that the applicant had completed her courses without breaching conditions the Tribunal found the applicant does not meet c.572.223(1)(a);

   ii)that the Trubunal erred in concluding that the applicant had undertaken unrelated courses when 6 of the courses namely English, Cert III in Food processing, Diploma in Business, Advanced Diploma in Management, Cert IV in frontline management and Cert III in Commercial Cookery are directly relevant to the applicant who plans to operate her own café in India;

   iii)the Tribunal erred in finding that the 8 courses which the applicant had completed from 2008 to 2015 was inexpensive when it was not even put to the applicant how much she has spent studying this courses;

   iv)the Tribunal erred in not considering that the applicant had not applied for any subclass 457 visa or any other temporary or permanent visas with her qualifications which would have entitled the applicant to prolong her stay or apply for a permanent visa; and

   v)the Tribunal failed to consider that the applicant kept on studying without any gaps and had spent tens of thousands of dollars.

   b)the Tribunal erred in imparting its own observation and knowledge without any basis:

   i)that the Tribunal erred in observing that India has many international hotels with chefs trained to international levels hence the applicant should study hospitality in India and not in Australia.

Background

1. The applicant is a citizen of India who first arrived in Australia on 2 April 2008 as the holder of a subclass 573 student visa which was valid until 16 August 2010. The applicant held a number of student visas and associated bridging visas after this date and on 14 March 2014 the applicant applied to the Department of Immigration for the visa which is the subject of this application. The terms of the requirements of the visa are found in the decision of the delegate.[1]

   [1] CB 165

2. The delegate refused to grant the visa and the delegate was not satisfied that the applicant intended to genuinely stay in Australia temporarily.[2]  The applicant made application to the Tribunal for a review of the delegate’s decision on 22 October 2014 and the delegate made its decision affirming the decision of the delegate on 15 February 2015.  The applicant was represented before the Tribunal and had the assistance of submissions made by the applicant’s migration agent which were provided to the Tribunal.

   [2] CB 160-169

The Tribunal’s Decision

1. In substance, the Tribunal found that the applicant had undertaken a series of inexpensive courses at advanced diploma level or a lower level which did not represent any coherent academic or career path and represented instead an attempt to maintain ongoing residence in Australia.[3] The Tribunal acknowledged that the applicant had completed the courses that she had enrolled in.  However, it held that she had done so not as a genuine temporary entrant for study in Australia but so as to maintain ongoing residence.[4]

   [3] Tribunal’s reasons at [32].

   [4] Tribunal’s reasons at [33].

Ground 1

1. In her grounds of review the applicant asserts by Ground 1(a) that although the Tribunal accepts that the applicant did not have gaps of enrolment or study, and that the applicant had completed her courses without breaching conditions, the Tribunal found that the applicant does not meet cl.572.223(1)(a). Having regard to the findings which are specifically made at [32] of the Tribunal’s decision, it was open to the Tribunal to make the finding that it did and Ground 1(a) is essentially a challenge to a finding of fact which is impermissible.

2. In relation to Ground 1(b) where it is asserted that the Tribunal erred in concluding that the applicant had undertaken unrelated courses when six of the courses, namely, English, Certificate III in Food Processing, Diploma in Business, Advanced Diploma in Management, Certificate IV in Frontline Management and Certificate III in Commercial Cookery are directly relevant to the applicant who plans to operate her own café in India. No jurisdictional error arises or suggestion of jurisdictional error arises from Ground 1(b), and once again this is a disagreement with findings of fact made by the Tribunal.

3. I also note in Ground 1(b), that the applicant omitted reference to courses that she took in construction and interior decorating.  Reference to these courses would tend to strengthen the Tribunal’s finding that the courses had little logical connection to one another and did not provide a coherent or logical career path or set of studies in order to establish a career in a particular area.

4. In oral submissions before the court, the applicant submitted that she had undertaken the courses in decorating and construction because she had been influenced by other people and chose not to pursue that area.  That submission does not add anything of substance to the merits of the grounds that she advances. 

Ground 1(c)

1. This ground asserts that the Tribunal erred in finding that the eight courses which the applicant had completed from 2008 to 2015 were inexpensive, when it was not put to the applicant how much she had spent studying.

2. It was submitted by the respondent that there was no obligation on the part of the Tribunal to raise the issue of how much she had spent studying the courses and submits that in any case, the information in relation to the study history was information that the applicant provided in the course of the review before the Tribunal.  I accept that the assessment that these courses were relatively inexpensive was merely part of the reasoning process engaged in by the Tribunal and these matters were not required to be put to the applicant.  In that regard I refer to SZBYR v Minister of Immigration and Citizenship (2007) 235 ALR 609 at 18.

3. In relation to Ground 1(d) it is asserted that the Tribunal erred in not considering that the applicant had not applied for any subclass 457 visa or any other temporary or permanent visas with her qualifications which would have entitled the applicant to prolong her stay or apply for a permanent visa. In fact the Tribunal made the following specific reference to this matter in its consideration of the issues at [26] of the reasons:

   The applicant's agent noted that the applicant had not applied for a subclass 457 visa (which involves sponsorship by an Australian employer) even though she could, and this should be taken to be an indicator of the fact that she genuinely intended to study here and then return to India.

4. At [32] the tribunal accepted that the applicant has no family in Australia and has not chosen to pursue a formal sponsorship for temporary residence with an Australian employer. However, this did not allay the tribunal’s concerns articulated in detail at [32] of the decision. These reasons ground 1 (d) has no merit.

5. Ground 1(e) asserts that the Tribunal failed to consider that the applicant kept on studying without any gaps and spent tens of thousands of dollars. This is essentially a re-working of earlier grounds and I dismiss that ground and having regard to those reasons, I dismiss Ground 1.

Ground 2

1. The second ground is that the Tribunal made an error in observing that India has many international hotels with chefs trained to international levels, hence the applicant should study hospitality in India and not in Australia.  In my view no error is disclosed by the Tribunal expressing that view or making that observation. It was expressed as an observation at the Tribunal’s reasons at [17] and it is apparent that it did not form part of the reasoning process embarked on by the Tribunal at [28] to [34] of the reasons.

2. In any case, the observation that the Tribunal made was one that it was permitted to make based on its own knowledge and experience and is not an unreasonable observation to make. In those circumstances the court dismisses Ground 2 of the application.

Conclusion

1. In view of these reasons, I find that no jurisdictional error is disclosed in the reasons of the Tribunal and the court will make orders that the application be dismissed and that the applicant pay the first respondent’s costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge McNab.

Date: 5 October 2016