Kaur v Minister for Immigration

[2020] FCCA 2606

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2606

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.359

Cases cited:

Htun v Minister for Immigration (2003) 233 FCR 136

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

NABE v Minister for Immigration(No 2) (2004) 144 FCR 1

First Applicant: DALJIT KAUR

Second Applicant RANVIR SINGH

Third Applicant HARSIMRAT KAUR

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 514 of 2020

Judgment of: Judge Driver

Hearing date: 16 September 2020

Delivered at: Sydney

Delivered on: 16 September 2020

REPRESENTATION

The Applicant appeared in person:

Solicitors for the Respondents: Ms D Stone of Sparke Helmore

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The first and second applications are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 514 of 2020

DALJIT KAUR

First Applicant

RANVIR SINGH

Second Applicant

HARSIMRAT KAUR

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. The first applicant, Ms Kaur, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 February 2020.

2. The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant the applicants temporary student visas.  Before the Tribunal, the applicants comprised Ms Kaur, her husband and their child.  Likewise, in the proceedings of this Court, there are two adult applicants and a child.

3. Background facts relating to this matter are otherwise conveniently set out in the Minister’s outline of submissions filed on 2 September 2020, which I adopt.

4. Ms Kaur, a citizen of India, arrived in Australia on 18 April 2009 as the holder of a Vocational Education and Training Sector (subclass 572) visa.[1] Since her arrival, over ten years ago, she has either held a student visa, 457 visa or associated bridging visas. On 22 December 2017, she was refused her application for a permanent Regional Sponsored Migration Scheme (Subclass 187) visa.[2]

   [1] Court Book (CB) 51-52

   [2] CB 52

5. On 31 January 2018, four days before Ms Kaur’s 457 visa was due to cease, she applied for the further student visa to undertake an Advanced Diploma in Leadership and Management, due to be completed in May 2021.[3] The second and third applicants were included in the application as members of her family unit.[4]

   [3] CB 1-22

   [4] CB 4-5

6. On 22 March 2018, the delegate refused to grant Ms Kaur the visa.[5] The delegate was not satisfied that Ms Kaur genuinely intended to stay in Australia temporarily and therefore found that she did not meet the requirements of clause 500.212(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).

   [5] CB 48-56

7. On 9 April 2018, the applicants applied to the Tribunal for review of the delegate’s decision, providing a copy of that decision with the application.[6]

   [6] CB 57-59

8. On 31 October 2019, the Tribunal wrote to the applicants pursuant to s.359(2) of the Migration Act 1958 (Cth) inviting them to provide information.[7] Namely, the invitation informed Ms Kaur that a requirement of the visa was that she be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student. The letter invited her to provide information about the course(s) she was undertaking. In response, Ms Kaur completed the “Request for Student Visa Information” form and provided a current Confirmation of Enrolment (CoE) and various academic documents as evidence of her studies.[8]

   [7] CB 67-68

   [8] CB 69-107

9. On 6 February 2020, Ms Kaur attended a hearing before the Tribunal.[9] Shortly before the hearing, Ms Kaur provided a letter from the Australian College of the Professions dated 24 January 2020 confirming her enrolment in an Advanced Diploma of Leadership.[10]

   [9] CB 121

   [10] CB 118-119

10. As noted above, on 7 February 2020, the Tribunal affirmed the delegate’s decision.[11]

    [11] CB 128-134

Tribunal’s decision

1. The Tribunal identified that the issue before it was whether Ms Kaur intended to stay in Australia temporarily. It recorded that in considering this issue, it was required to have regard to Ministerial Direction No 69 (Direction 69).[12] It also recorded that it had regard to Ms Kaur’s response to the s.359 invitation and evidence provided by her to the Minister’s Department.[13]

   [12] CB 129-130, [7]-[10]

   [13] CB 130, [11]-[13]

2. The Tribunal considered Ms Kaur’s extensive study history in Australia and found that she had not demonstrated that there was any value in the current course of study to her future employment prospects.[14] The Tribunal found it weighed against her favour that she enrolled in courses only after her permanent residency application was refused and her 457 visa had ceased.[15]

   [14] CB 131, [15]-[17]

   [15] CB 131, [16]

3. The Tribunal considered Ms Kaur’s work history in Australia since 2009 and extensive experience at the management level, and found she was well placed to find suitable employment, should she return home.[16] The Tribunal did not consider that she had demonstrated any real value in completing her course and found that her Genuine Temporary (GTE) statement did not assist the Tribunal in understanding how the course was likely to improve her employment prospects or future remuneration.[17]

   [16] CB 131, [19]-[20]

   [17] CB 132, [22]

4. The Tribunal did not consider Ms Kaur’s family ties to India to be a significant incentive for her to return, noting that she had only spent 137 days outside Australia since 2009 and had last returned to India in 2016.[18] It found that she did not provide any evidence of community ties to India and this was unsurprising given she had lived in Australia for over a decade.[19] It further considered that the presence of Ms Kaur’s husband and child in Australia operated as a significant incentive to remain in Australia.[20] The Tribunal did not consider the existence of property assets in India to be an incentive for Ms Kaur to return home, and observed that the general conditions and quality of life in India were not as attractive as those in Australia.[21] It found Ms Kaur’s work and the work of her husband together with the economic circumstances in Australia, were a significant incentive not to return home.[22]

   [18] CB 132, [23]

   [19] CB 132, [24]

   [20] CB 132, [25]

   [21] CB 132, [26]-[27]

   [22] CB 133, [28]

5. Having regard to all the evidence, the Tribunal found Ms Kaur did not intend to genuinely stay in Australia temporarily and that, to the contrary, the evidence demonstrated that she was using the student visa programme as a means to extend her stay in Australia as long as possible.[23] Accordingly, the Tribunal found she did not meet clause 500.212(a) of Schedule 2 to the Regulations and affirmed the decision under review.[24] As a consequence, the Tribunal found the secondary applicants did not satisfy clause 500.311.[25]

   [23] CB 133, [36]

   [24] CB 133-134 [37]-[38]; [40]

   [25] CB 133, [39]

The current proceedings

1. These proceedings began with a show cause application filed on 3 March 2020.  Ms Kaur continues to rely upon that application.  The grounds in it are expressed in narrative form, as follows:  

   My Student visa was refused on 22 March 2018. I then applied to the Tribunal to appeal the decision. The Tribunal affirmed the decision of the delegate. I also attempted to provide evidence of the compelling and compassionate circumstances that evolved due to this matter. I feel jurisdictional error has occurred within this respect as the relevant material of my compelling and compassionate circumstances were ignored. Jurisdictional error also encompasses situations where there has been a failure to take matters into account. It was not acknowledged at all that I had been a diligent law abiding citizen for several years prior to this refusal. The orders I seek if for the cancellation of my sc500 Visa to be overturned, as I have satisfied all requirements for grant. I wish to apply for an appeal of this matter to be heard at the Federal Circuit Court. I humbly request the Federal Circuit Court to consider my application of appeal and allow the opportunity for the matter to be heard with the full set of facts along with a proper carriage of justice.

   Hence grounds of my appeal are:

   Jurisdictional error, miscarriage of justice and the lacking of the AAT to take into account complete set of facts.

2. In addition to the affidavit filed with the show cause application I have before me as evidence the court book filed on 24 April 2020.  Only the Minister provided pre-hearing written submissions in accordance with my procedural orders.

3. I invited oral submissions from Ms Kaur this morning.  She told me that her objective was to finish her Leadership and Management Diploma course that she is currently undertaking.  The course is due for completion on 9 May 2021, and Ms Kaur told me that she is continuing to study.  She is currently on maternity leave, which will push out the completion date for her studies towards the end of next year, but Ms Kaur seeks an opportunity to complete those studies.

4. In the present circumstances, there are, no doubt, compassionate circumstances worthy of consideration.  That is a matter for the Minister and his Department.  It is beyond the scope of this proceeding.

5. The grounds raised by Ms Kaur do not point to any arguable case of jurisdictional error.  The Minister’s submissions deal with the grounds.  I agree, subject to one qualification, with those submissions.

6. To the extent Ms Kaur proceeds on the basis that her student visa was “cancelled”, this is plainly incorrect.

7. In essence, Ms Kaur’s complaint appears to be that the Tribunal ignored her “compelling and compassionate” circumstances and that it failed to take into account relevant matters, namely that she had been a “law abiding citizen”.

8. Without particulars, it is difficult to discern what “compelling and compassionate” circumstances Ms Kaur is referring to. Further, this very general complaint misunderstands the nature of the Tribunal’s review function and the requirements in clause 500.212(a). The Tribunal was not required to consider whether there were “compassionate circumstances” to justify the grant of the visa. The Tribunal had to be satisfied that Ms Kaur intended genuinely to stay in Australia temporarily, and ultimately was not so satisfied. Further, whilst the Tribunal retained a broad discretion to consider “any other relevant matters” under Direction 69, it is not apparent that there were any other matters raised by Ms Kaur that were relevant to the Tribunal’s assessment of whether she genuinely intended to stay in Australia temporarily and which were not considered. The Tribunal had regard to all the relevant factors in Direction 69 and the evidence before it in assessing whether Ms Kaur met the criterion in clause 500.212(a). Accordingly, this “ground” fails to raise an arguable case for the relief claimed.

9. In relation to Ms Kaur’s complaint that the Tribunal failed to consider that she had been a “law abiding citizen”, it is not apparent that Ms Kaur advanced this as a matter which supported her claim to meet the criteria. The Tribunal cannot be said to have failed to consider a submission or claim that was not actually advanced before it.[26]  In any event, as set out above, the Tribunal had regard to the relevant factors outlined in Direction 69, and it is not apparent what material relevance Ms Kaur’s claimed status as a “law abiding citizen” has to the Tribunal’s decision.

   [26] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at 19 [60]; Htun v Minister for Immigration (2003) 233 FCR 136

10. In general the “grounds” set out under the heading “Grounds of appeal” invite the Court to undertake a review of the merits of the Tribunal’s decision and rise no higher than an expression of disagreement with the Tribunal’s adverse finding that she was not a genuine temporary entrant.[27]

    [27] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [272]

11. Accordingly, the application does not raise an arguable case for the relief claimed and ought to be dismissed.

12. My qualification to the Minister’s submission is that the decision of the Tribunal is in my view unremarkable, except in relation to [27], in which the Tribunal refers to and appears to place weight on the United Nations Human Development Index.  I have noted in recent decisions of the Tribunal in student visa cases an increasing reliance upon that index.  That is not, in my view, something to be encouraged, because it tends to distract attention from the particular circumstances of the visa applicant.

13. The fact that Australia has a higher ranking in the index than another country does not in my view establish anything in order to inform the Tribunal of the relevant pull factors of Ms Kaur’s country of residence and Australia.  The index is particularly problematic in relation to a country like India, which is vast, has over 1 billion people and has dramatic disparities between elements of the population.

14. While India ranks low in the index because of the millions who live in abject poverty in rural communities and in slums on the fringes of major cities, there is also a burgeoning middle class and a significant number of wealthy people.  A person from a wealthy family in a poor country may have a strong incentive to return, regardless of the general poverty in that country.

15. The application of the index too readily could lead to absurd results, for example, while Australia ranks sixth in the world on the index, the United States ranks 15^th.  It would appear very odd to suggest from the index that an American student lacks an incentive to return to the United States because of the lower ranking of the USA on the index.

16. I nevertheless conclude that Ms Kaur is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

17. In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale.  Ms Kaur initially indicated some confusion between Court fees and legal costs.  Once explained, however, she indicated that she may request a reduction of the costs or arrangements for payment over time.  That is a matter for her to discuss with the Minister’s Department. 

18. I will order that the first and second applications are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 18 September 2020