Kaur v Minister for Immigration

[2016] FCCA 750

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 750

Catchwords:
MIGRATION – Judicial review – visa –student visa.

Legislation:

Migration Regulations 1994 (Cth), r.572.223 of schedule 2

First Applicant: RAJWINDER KAUR

Second Applicant: PALWINDER SINGH

Third Applicant: JAPLEEN KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1583 of 2015

Judgment of: Judge Harland

Hearing date: 29 March 2016

Date of Last Submission: 29 March 2016

Delivered at: Melbourne

Delivered on: 29 March 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed on 10 July 2015 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3,801.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1583 of 2015

RAJWINDER KAUR

First Applicant

PALWINDER SINGH

Second Applicant

JAPLEEN KAUR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for a judicial review of the Tribunal’s decision dated 22 June 2015 affirming the Delegate’s refusal to grant the applicant a student visa.  The primary applicant is Ms Kaur.  The second and third applicants are her husband and their child.  The applicant applied for a student (subclass 572) visa on 30 June 2014. 

3. The Tribunal sets out the requirements the applicant needs to meet pursuant to clause 572.223 of schedule 2 of the Migration Regulations 1994 (Cth). The applicant appeared before the Tribunal and gave evidence. The Tribunal identified that the primary issue is whether or not the applicant satisfies clause 572.223(1)(a), which is that the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student.

4. There are various factors that the Minister must have regard to in considering whether or not an applicant is a genuine applicant.  Direction number 53 sets out factors that the Tribunal must consider and those include the applicant’s circumstances in their home country, and in this case, India; potential circumstances in Australia; the value of the course to the applicant’s future; the applicant’s immigration history and any other relevant material. The Tribunal is required to consider the whole of the applicant’s circumstances rather than simply applying a checklist of matters.

5. The Tribunal sets out at paragraph 11 of its decision the applicant’s history in Australia. The applicant first arrived in Australia on a subclass 572 visa in July 2009 and completed courses in Certificate III ESL, Diploma of Management, Certificate III in Hospitality, Diploma of Business and an Advanced Diploma of Business. The Tribunal noted that the applicant spent most of her time since arrival in 2009, in Australia apart from two periods of about a month at a time.

6. The applicant applied for a further student visa, which is the subject of the review, seeking to study a Diploma of Marketing and an Advanced Diploma of Marketing.  The Delegate had considered that the applicant was not a genuine applicant and was not satisfied that she intended to stay in Australia temporarily and expressed some concern about the nature of the courses she was now seeking to study. 

7. At paragraph 12 of the Tribunal decision, the Tribunal notes that the applicants were invited to attend a hearing and were provided a copy of the Minister’s direction number 53 and were invited to address those issues. Paragraph 13 sets out the documents that the applicant relied on, including evidence of the various courses that she has completed that I referred to earlier, as well as letters from her employer, the Curry Garden Indian Restaurant in Bendigo, where she and her husband have been working part time. 

8. The applicant advised that she no longer wished to study the Diploma and Advanced Diploma of Marketing but wished to complete a Certificate IV in Hospitality in Commercial Cookery.  She said she was studying that course because even though she had been awarded that certificate because of recognition of prior learning, she thought that the formal training would be more widely recognised in India.  

9. She had also applied in 2013 for a subclass 457 visa.  She wanted to get work experience working in a kitchen.  The applicant was not granted that visa but the Tribunal noted that that would not count against her in her application for a student visa because there was nothing irregular or improper in a student applying for another type of visa. The Tribunal noted this at paragraph 23 and noted that it is often a legitimate pathway for other temporary or permanent visas. 

10. The Tribunal sets out the applicant’s evidence and the concerns that the Tribunal member raised with her about the courses that she had done and her stated intentions for the future course.  The Tribunal was not satisfied that, considering all of the circumstances, and although noting that she had family in India, including her mother and two adult sisters, that she had incentive to return to India and noted that she has a husband and a child who was born in Australia. 

11. The Tribunal was not satisfied that Ms Kaur needed to study the additional course in order to be able to open the restaurant in India that she said she wished to do and that considering her circumstances, the Tribunal was not satisfied that she complied with regulation 572.223(1)(a) and affirmed the decision of the Delegate.  The first respondent relies on written submissions which outline that history. 

12. The applicant appears unrepresented before me today.  The applicant in her application does not set out any grounds that raise a jurisdictional error but rather notes that the Tribunal was not satisfied that she met the requirements of the regulation and also stated that she intended to enrol with an education provider into a higher education bachelor degree and noted that she wished to continue to study in Australia. 

13. As I explained to the applicant, the nature of the judicial review proceeding is quite limited and is limited to identify whether or not the Tribunal has made an error of law that amounts to a jurisdictional error.  It is not a review of the merits of the application.  The applicant does not raise in her application a jurisdictional error by the Tribunal and was not able to identify a mistake in the Tribunal’s decision. She repeated that she wishes to continue to study in Australia and intends to return to India where she has family. 

14. Having considered the material, I am satisfied that the decision of the Tribunal is not affected by a jurisdictional error and therefore I must dismiss the application. The Minister is seeking costs in the sum of $3,801. I will order that the applicant pay costs in the sum of $3,801.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  8 April 2016