Kaur v Minister for Immigration

[2016] FCCA 1190

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1190

Catchwords:

MIGRATION – Visa – student visa – whether genuine student – genuine temporary entrant criteria – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476(1),

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

Cases cited:

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297

First Applicant: KULDEEP KAUR

Second Applicant: BALJINDER SINGH NADHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 414 of 2015

Judgment of: Judge Heffernan

Hearing date: 3 May 2016

Date of Last Submission: 3 May 2016

Delivered at: Adelaide

Delivered on: 3 May 2016

REPRESENTATION

The Applicant: In person with an interpreter

Solicitors for the Respondents: Ms Milutinovic for Sparke Helmore Lawyers

ORDERS

1. The Application filed 5 November 2015 is dismissed.

2. The applicants do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 414 of 2015

KULDEEP KAUR

First Applicant

BALJINDER SINGH NADHA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-tempore reasons settled from transcript)

1. This is an application pursuant to s.476(1) of the Migration Act 1958 (Cth) (‘the Act’). It seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 2 November 2015. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’).

2. The first applicant, Ms Kaur, is the visa applicant and she appeared unrepresented in this hearing with the assistance of an interpreter.  The second applicant is her husband, Mr Nadha, who did not appear for the hearing of this matter.  I note that his claim for a visa is wholly dependent on that of his wife. 

3. The applicant raises two grounds in her application for judicial review.  The first ground is as follows:

   “I am a genuine student in Australia and I should be granted a Student visa to continue with my study.”

4. The second ground is as follows:

   “The Immigration Department and the Tribunal did not apply the regulations, policies and Ministerial direction number 53 correctly.”

5. Prior to hearing submissions from the applicant I explained the nature of these proceedings to her, and I explained the limited basis on which this Court can interfere with a decision of the Tribunal in a matter such as this. 

6. The Tribunal hearing took place on 6 May 2015.  Prior to the hearing the migration agent for the applicant provided a detailed written submission to the Tribunal.  The migration agent also represented her at that hearing.

7. The issue before the Tribunal was whether the applicant could meet the genuine temporary entrant criterion. That criterion is embodied in cl.572.223(1)(a). In order for the applicant to satisfy that criterion it would be necessary for her to satisfy the Minister that she was a genuine applicant for entry and stay as a student because she intends to genuinely stay in Australia only temporarily.

8. In reaching that decision the Tribunal was required to consider the applicant’s circumstances, her immigration history, and any other matters that it regarded as relevant.  It was also required to have regard to Direction No.53, which set out a number of relevant factors which must be taken into account when assessing the genuine temporary entrant criterion.  The Tribunal was not satisfied that the applicant intended to genuinely stay in Australia only temporarily. 

9. In considering the applicant’s claim, the Tribunal had regard to Direction No.53, as it was required to do, but there is nothing to suggest that it used the Direction as a simple checklist to the exclusion of any other considerations.  The Tribunal took into account the study history of the applicant which was as follows.

10. The applicant arrived in Australia on 11 July 2008 on a Student 573 visa.  Since that time the applicant has held a number of temporary visas.  The applicant has completed a number of courses since July 2008.  These include an English course; a Certificate in Hospitality; a Diploma of Hospitality; a Diploma of Business; a Diploma of Management; and, an Advanced Diploma of Management, which she completed in July 2014.  In August 2014, she lodged an application for a further student visa.  This was to enable her to undertake a Diploma of Marketing and an Advanced Diploma of Marketing. 

11. The underlying reason for the application for a further visa is that she hopes to open a restaurant and hospitality business in India.  She has cooking skills and management skills but now requires marketing skills.  The applicant explained the value of the courses to the Tribunal and she said she would be learning to promote a business and how to run a business competitively.  As I have noted, she told the Tribunal that she intends to open a restaurant when she returns to India.

12. She proposed that she would return to India on the completion of her studies, and she emphasised to the Tribunal that she has a family and her son in India which gives her a strong incentive to return.  The Tribunal did accept her family ties to India, and in particular, her son did give her an incentive to return to India, and it gave those factors significant weight.  However, the Tribunal found that there were other matters to which it gave greater weight.

13. It took into account and gave considerable weight for the fact that the applicant has been in Australia for quite a long period of time.  It was not prepared to accept, or it doubted, that the applicant had a genuine intention to open a restaurant in India, because it concluded that she did not have a detailed plan to achieve this aspiration.  In that regard, it found her explanation for wanting to study these further courses to be unconvincing.  This was particularly so because it noted and gave weight to the fact that she had never worked in hospitality, either here or in India. 

14. It also placed weight on the fact that the applicant’s prior studies in India were at the higher education level and that caused it doubt as to whether she intended to pursue a business at a more vocational level once she returned to India.  When it considered those matters in combination with the fact that both the applicant and her husband are working in Australia, it concluded that this was likely to be the primary motivation for wanting to stay in Australia.

15. In other words, the Tribunal concluded that the student visa system was being used to maintain ongoing residence, and in that regard it took into account the fact that the applicant had studied a series of short, inexpensive courses.  It gave those matters greater weight than the obvious ties that the applicant has to her family and child in India. 

16. For those reasons, the Tribunal concluded that it was not satisfied that the applicant intends genuinely to stay in Australia temporarily.  For that reason, the applicant was not able to meet cl.572.223 and it affirmed the decision of the delegate.  That meant that the secondary applicant, Mr Nadha, also failed before the Tribunal.

17. The applicant gave brief oral submissions before me.  Those oral submissions addressed both grounds together.

18. Ms Kaur reiterated to me that she was a genuine student.  She took issue with the fact that the Tribunal found that she had taken courses in a number of different areas.  The point she was making was that her choice of courses complemented each other.  She points to the fact that she has always kept up her studies appropriately and always paid her fees.  She emphasised that she simply wanted to finish her studies and go back home to India. 

19. She could not understand why the Tribunal did not find that she was a genuine student because she regards the fact that she was actually studying as the best indicator of the fact that she was a genuine student.  With respect to ground two of the application, Ms Kaur did not really make any oral submissions in relation to that ground.  It appears that the wording of that ground was suggested to her at the time of filing the application, and her main argument and complaint about the Tribunal ruling is in fact, the fact that it failed to find that she was a genuine student. 

20. Ms Kaur emphasised to the Court that she has a son back in India, and that for that reason she definitely intends to return to India.  Whilst she did not express it in these terms - that would establish that she was only intending to stay in Australia temporarily. 

21. The first respondent relies in large part on its written submissions. In essence, it says that the applicant is seeking a review of the merits of the decision of the Tribunal. It submits that this is impermissible. The first respondent submits that the Court is not permitted to do that. It also submits that the Tribunal complied with all of the requirements contained within the Act for giving the applicant a fair hearing, giving her an opportunity to give evidence and present arguments, and putting her on notice of the issues, or the issue that she had to address at the hearing.

22. It submits that it cannot be demonstrated that the Tribunal either got the law wrong or made a decision that was unreasonable.  It says that the decision of the Tribunal was open to it on the evidence, and that jurisdictional error has not been established.

Consideration

1. There are two aspects to ground one and the submissions that the applicant made before me.  The ground itself, and, indeed, the submissions made by the applicant, seek to take issue with the outcome of the Tribunal hearing process.  In complaining that the Tribunal should have found that she was a genuine student, the applicant is complaining about the merits of the decision.  It is not for this Court to engage in fact finding about the merits of the applicant’s case.  The applicant is dissatisfied with the decision of the Tribunal.

2. She clearly thinks that it is an unfair decision to her, but I am not able to interfere with the decision of the Tribunal simply because the applicant thinks that it is unfavourable to her.  As stated by the Court in the case of NAHI[1], the boundaries of jurisdictional error are not so broad as to include errors of fact as to the merits of the case put to the Tribunal.  Indeed, even if the Tribunal got a fact wrong, that would not amount necessarily to a jurisdictional error, and I refer to the High Court case of Abebe[2] in that regard.

   [1]     NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.

   [2]     Abebe v The Commonwealth of Australia (1999) 197 CLR 510.

3. The second aspect of the applicant’s argument is that she told it things about her intention to return to India, the fact that her son lived there, and that the Tribunal accepted this but still did not find that she was intending to stay in Australia only temporarily.  That is a complaint about the amount of weight the Tribunal gave to that matter as opposed to the other matters that it considered. 

4. I am not able to interfere with a conclusion that the Tribunal reaches about how much weight to give to an item of evidence.  It is for the Tribunal to identify such material as it finds relevant, and to give it the weight that it believes is fit.  I refer to the case of Tran v Minister for Immigration & Multicultural & Indigenous Affairs[3] in that regard. 

   [3] [2004] FCAFC 297 at [5]-[7].

5. With respect to ground two, I am not satisfied that the applicant has demonstrated that the Tribunal either made an error of law, or that it failed to take into account or properly apply Direction No.53, or the terms of cl.572.  That ground also complains about things done by the Immigration Department, but I only have jurisdiction to consider what was done by the Tribunal.

6. I am not satisfied that jurisdictional error has been established in any respect with respect to ground two.  The Tribunal complied with its obligations to behave in a way that was procedurally fair.  It invited the applicant to a hearing.  The Tribunal took evidence from her and questioned her about her claims and evidence.  It gave her an opportunity to address the concerns that it had.  It also put her on notice of the terms of Direction No.53 and pointed out the importance of being able to comply with cl.572. 

7. I am satisfied that the finding of the Tribunal was at least open to it.  There was nothing unreasonable, illogical or irrational in the findings of the Tribunal.  The applicant has not established that there was jurisdictional error with respect to either of the grounds in her application.  I dismiss the application, and I make an order that the applicant pay the costs of the first respondent.

1. I note that I am dismissing the application insofar as it relates both to the first applicant and the second applicant.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 17 May 2016