KAUR v Minister for Immigration
[2015] FCCA 3535
•7 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3535 |
| Catchwords: MIGRATION – Migration Review Tribunal – Student (Temporary) (Class TU) visa – tribunal forming view applicant was not a genuine temporary entrant for the purposes of study – show cause hearing – no reasonable prospect of success. |
| Legislation: Federal Circuit Court Rules 2001, r.44.12 |
| First Applicant: | KAMALJEET KAUR |
| Second Applicant: | GURPREET SINGH |
| Third Applicant: | KAVNEET KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 785 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 7 December 2015 |
| Date of last submission: | 7 December 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 7 December 2015 |
REPRESENTATION
| Counsel for the first applicant: | The first applicant appeared in person |
| Solicitors for the first applicant: | The first applicant was not represented |
| Solicitors for the second applicant: | The second applicant appeared in person |
| Solicitors for the second applicant: | The second applicant was not represented |
| Solicitors for the third applicant: | The third applicant appeared in person |
| Solicitors for the third applicant: | The third applicant was not represented |
| Solicitor advocate for the first respondent: | Aaron Day |
| Solicitors for the first respondent: | DLA Piper Australia |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | DLA Piper Australia |
ORDERS
The application filed on 15 April 2015 be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.
The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 785 of 2015
| KAMALJEET KAUR |
First Applicant
| GURPREET SINGH |
Second Applicant
| KAVNEET KAUR |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from the transcript)
Introduction
This matter was listed today for a show cause hearing in an application for review of a decision of the Migration Review Tribunal (“the tribunal”). The first applicant applied for a Student (Temporary) (Class TU) visa. The second applicant is her husband and the third applicant is their daughter. The delegate of the Minister refused the visa on the ground that the first applicant was not a genuine temporary entrant to Australia for the purpose of study. The tribunal affirmed the delegate’s decision on the same basis.
The tribunal noted that the first applicant had enrolled in a wide variety of short-term, relatively inexpensive and seemingly unrelated courses while in Australia, including:
a)hairdressing salon management;
b)hairdressing;
c)international business management;
d)business;
e)horticulture (wholesale nursery);
f)production horticulture; and
g)management.
The first applicant had apparently spent more than six years in Australia but made very little academic progress. She had not completed any higher education level courses despite entering Australia on a subclass 573 visa. In the delegate’s view, there were a number of gaps in the first applicant’s enrolment and level of study and she had demonstrated very limited success in her studies relative to the time that she had spent in Australia. The delegate noted that the first applicant reported that she intended to study in Melbourne, despite living in Griffith, which is approximately 460 kilometres away.
The delegate considered that:
a)the first applicant’s lack of academic progress;
b)her study history;
c)her personal circumstances in Australia;
d)her immigration history; and
e)the lack of value in the courses she proposed to undertake,
indicated that she was not a genuine applicant for entry and stay as a student.
The tribunal conducted a hearing which the applicants attended. The migration agent who was then assisting the applicants did not attend the tribunal hearing.
The tribunal raised various matters with the applicants, including that the first applicant had spent very little time in India since arriving in Australia. The tribunal noted that the first applicant said that if her daughter could finish the school year in 2015, they would then return to India in 2016. I note that it is now 7 December 2015.
The first applicant told the tribunal that she had difficulties with her study in 2008 because of her pregnancy and in 2009 because her brother had died in India. The first applicant claimed that she had changed courses after her brother’s death because she wanted to help her parents on their farm.
The tribunal asked the first applicant about the various courses that she had enrolled in and asked the first applicant how she could live in Griffith and attend university in Melbourne, as she had suggested in her visa application. The first applicant said she would live in Griffith and travel to Melbourne and attend classes from 9am to 5pm on both Friday and Saturday. She told the tribunal that she would stay in Melbourne with her brother/cousin.
The tribunal asked the first applicant what steps she had taken to return to India at the end of the course that she was currently enrolled in, which was due to end on 8 November 2015. The tribunal specifically asked if the first applicant had any evidence that she had notified her real estate agent that they would end their lease at that time or if they had told the school that their daughter would not return in 2016. The first applicant indicated that she had not taken any such steps. The first applicant asked the tribunal that her student visa be granted until November 2015. As I say, it is now December 2015.
The tribunal noted that the first applicant’s current proposed course of study meant that the relevant subclass of visa was subclass 572. That required the Minister to be satisfied that the first applicant was a genuine applicant for entry and stay as a student on a temporary basis.
The tribunal noted that it was required to have regard to Direction
No. 53 which was made under s.499 of the Migration Act 1958 and is headed “Assessing the genuine temporary entrant criterion for Student visa applications”.
The tribunal noted that the direction required the tribunal to have regard to a number of matters. The tribunal also noted that the direction indicated that it was not a check list but a guide to assist in considering an applicant’s circumstances as a whole.
The tribunal considered that the first applicant was not a genuine, temporary entrant for a student visa for the reason that the applicant had enrolled repeatedly in low level, short-term, unrelated courses even though she had a higher qualification from India.
The tribunal accepted that the first applicant’s parents continued to reside in India, but did not accept that the first applicant’s personal ties to her own country would serve as a significant incentive to return. The tribunal noted that the first applicant had spent five weeks in India in 2009 and two months in 2012 in a total of seven years in Australia. The tribunal noted that the first applicant acknowledged that the economic circumstances in India, the prospect of military service commitments or political and civil circumstances did not act as deterrents for her to return to India.
The tribunal noted that the first applicant repeatedly referred to her daughter attending school in Australia and her desire to complete her current year. The tribunal considered that the first applicant’s evidence indicated that the first applicant wished to remain in Australia, at least partly for the sake of her daughter attending school.
The tribunal considered that the courses in which the first applicant enrolled in Australia were not consistent with her previous level of education as she had completed a bachelor’s degree overseas.
All in all, the tribunal was not satisfied that the first applicant intended to genuinely stay in Australia temporarily for the purposes of study. On this basis, the tribunal noted that the first applicant did not meet an essential requirement of clause 572.223. The tribunal also noted that all the other subclasses within the visa class TU, except subclass 580, contained an identical requirement.
In respect of subclass 580, which concerned student guardians, there was no evidence discernible by the tribunal, that the applicant met the basic criteria for that visa. All the other subclasses within class TU required that the first applicant be a genuine temporary entrant for the purposes of study and so, for the same reasons, the tribunal was not satisfied that the first applicant met the essential criteria for any of the other subclasses with class TU. Consequently, the tribunal affirmed the decision of the delegate.
Before this court, the applicants relied upon an application filed on
15 April 2015. It was evidently prepared without the assistance of a lawyer. The applicants were not represented by a lawyer before the court today.
The first ground in the application is that:
Tribunal to consider the other subclass of visas in the class of visa
It is patent from the tribunal’s reasons for decision that it did consider the other subclasses of visa within the visa class, TU. There is nothing to indicate that the tribunal erred by failing to consider any appropriate subclass of visa.
The second ground in the application is that:
Tribunal find’s the applicant’s circumstances overall to be indicate of her wish to remain in Australia at least partly for the sake of her family. (errors in original)
It is true that the tribunal made that finding. It appears to me to be amply supported by evidence that was before the tribunal, including the first applicant’s own evidence that it was her wish to remain in Australia so that her daughter could attend school here. I see nothing untoward in the tribunal’s finding concerning that matter.
The third ground in the application, which is numbered 4, is that:
Tribunal does not accept that the applicant has applied for a further student visa in order to study courses and increase her future job prospects.
Again, that is true. The tribunal did not accept that matter. However, in my view, it was open to the tribunal to form the view that the first applicant was not a genuine applicant for temporary stay in Australia for the purpose of study. It was open to the tribunal to conclude that the first applicant simply wished to live in Australia for the benefit of herself and her family.
The first applicant did not elaborate on any of the grounds during oral submissions. The only thing she said to the court was that she just requested that they
… give me a visa until my course finishes and my daughter finishes the year.
As stated previously, the daughter would either have finished or be about to finish the year of her study in Australia. She is a primary school student and the school year is, no doubt, almost at an end. As noted previously, the first applicant’s course finished on 8 November 2015.
The first applicant did not have anything else to add. She did say that she agreed with the first respondent’s written submissions, though there may have been some misunderstanding there.
All in all, I am not persuaded that it is reasonably arguable that there is any jurisdictional error in the tribunal’s handling of this matter, either in the way it approached the decision-making process or in its reasons for decision. It seems to me that, in all the circumstances, the tribunal’s ultimate conclusions were open on the evidence. The tribunal appears to have afforded the applicants natural justice. I have been unable to discern any misapplication of the law or any other jurisdictional error.
Consequently, the application filed on 15 April 2015 will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 14 January 2016
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