KAUR v Minister for Immigration
[2015] FCCA 2620
•30 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2620 |
| Catchwords: MIGRATION – Application for a Student (Temporary) (Class TU) visa – review of decision of Migration Review Tribunal – whether the applicant established “exceptional reasons” for the grant of the visa under sub-cl.570.227 – whether the Tribunal considered all of the material and evidence before it – whether the applicant was afforded natural justice – no jurisdictional error – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), regs.1.03, 1.04, cl.570 of sch.2 |
| Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affair (2003) 77 ALJR 1088 Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 |
| First Applicant: | KANWALJEET KAUR |
| Second Applicant: | CHAIN BAJWA |
| Third Applicant: | SIRAT KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 472 of 2015 |
| Judgment of: | Judge Smith |
| Hearing dates: | 28 August 2015 & 2 September 2015 |
| Date of Last Submission: | 2 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2015 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | Mr L. Dennis, Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 472 of 2015
| KANWALJEET KAUR |
First Applicant
| CHAIN BAJWA |
Second Applicant
| SIRAT KAUR |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are citizens of India who arrived in Australia on tourist visas. The first named applicant is the wife of the second applicant and the mother of the third applicant. The first two applicants applied for student visas in order to enable the first applicant to undertake an English Language Intensive Course for Overseas Students (ELICOS). The third applicant was born some time later and was joined as a visa applicant. As the first applicant was the primary visa applicant, it is convenient to refer to her as the applicant.
The applicant’s circumstances meant that, in order to be eligible for the grant of a student visa, she had to establish that there were exceptional circumstances for the grant of that visa. She was unable to do so and a delegate of the Minister refused to grant her a visa. On review of that decision, the Tribunal was also not satisfied that there were exceptional circumstances and so affirmed the decision to refuse to grant the visa.
The applicant now wishes to re-agitate her claim that there were exceptional circumstances for the grant of the visa. For reasons which will be explained, the Court simply cannot engage with that argument. The applicant also says that she was denied procedural fairness in that the Tribunal failed to consider the basis upon which she claimed that there were exceptional circumstances for the grant of the visa. That ground, too, must fail for the reasons that follow.
The statutory scheme
In order to have permission to enter and remain in Australia a non-citizen must have a valid visa. In order to obtain a visa, the non-citizen must apply for a visa of a particular class. Once a valid application for a visa has been made, the Minister must consider that application. If the Minister is satisfied that the criteria for the grant of the visa have been met then he or she must grant the visa. If he or she is not satisfied that the criteria for the grant of the visa have been met he or she must refuse to grant the visa.
Classes of visa are divided into different subclasses. Each subclass of visa has different criteria which are, for the most part, contained in sch.2 to the Migration Regulations 1994 (Cth). Although an application for a particular class of visa entails an application for each subclass within that class, it is most often the case, as it was here, that an applicant only seeks to meet the criteria for one subclass.
The applicant applied for a Student (Temporary) (Class TU) visa. The subclasses within the Class TU visa are divided according to the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course. There is no dispute in this case that the subclass of visa appropriate to the applicant was subclass 570 – “Independent ELICOS Sector”. The criteria for that subclass were contained in cl.570 in sch.2 to the Regulations.
Subclass 570 is divided into a number of parts. Part 570.2 contains the primary criteria, namely, those that must be satisfied by at least one member of the family unit. Other members of the family unit need only satisfy the criteria in pt.570.3, the secondary criteria. This case concerns the primary criteria.
The primary criteria are, in turn, divided into two parts: cl.570.21, criteria to be satisfied at time of application; and cl.570.22, criteria to be satisfied at time of decision. Clause 570.211, a time of application criterion, requires that if, as in this case, the application for a visa was made in Australia, that the applicant meet the requirements of sub-cls.(2), (3), (4), (5), or (6). The applicant satisfied the requirement of sub-cl.570.211(2), in particular sub-cl.570.211(2)(a)(xvb), because at the time of the application she held a Tourist (Class TR) visa. She did not meet the requirements of the other subclauses in cl.570.211.
Clause 570.211, a time of decision criterion, provides that unless, at the time of application, the applicant met the requirements of sub-cl.570.211(4) or (5) (which the applicant did not), the applicant had to satisfy the criteria in cl.570.222 to 570.234. Subclause 570.227 applied to the applicant. It provided relevantly:
If:
a)the application was made in Australia; and
b)subject to clause 570.227A, the applicant is subject to the highest assessment level for the relevant course of study; and
c)at the time of application, the applicant met the requirements of clause 570.211:
i.as the holder of a visa of one of the following classes or subclasses:
…
(NB) Tourist (Class TR);
…
the applicant establishes exceptional reasons for the grant of a Subclass 570 visa.
The assessment level in sub-cl.570.227(b) is defined in reg.1.03 which states that “the level of assessment specified for a kind of eligible passport for the student visa under regulation 1.41”. Regulation 1.41 contains the following:
1) The Minister must specify, by instrument in writing, an assessment level for a kind of eligible passport, in relation to each subclass of student visa, to which an applicant for a student bias who seeks to satisfy the primary criteria will be subject.
…
In respect of subclass 570 visas, the Minister specified assessment level 4 in respect of holders of Indian passports.[1] Level 4 was the highest assessment level for subclass 570 visas.
[1] As well as for holders of passports issued by Bangladesh, Jordan, Pakistan, Cambodia, Lebanon, and Sri Lanka.
As the applicant satisfied the requirement in cl.570.211 on the basis that she held a Tourist (Class TR) visa, her application was made in Australia and she held an Indian passport, she had to establish exceptional reasons for the grant of the subclass 570 visa.
The applicant’s claims
The applicant applied for a student visa on 10 April 2013. By letter dated 17 April 2014 a delegate of the Minister informed her that she had begun considering the application for the visa and requested further information. In response to that request the applicant wrote to the Department of Immigration in an undated letter, setting out circumstances that she wished to be considered in connection with her application. For the reasons that will become apparent, it is necessary to set out those circumstances in full. The letter, at CB [36] contained the following:
…
·I am currently enrolled in General English Course with Strathfield College Sydney till 05 December 2014. I have completed more than 30% of my enrolled course and progressing well in the course. I wish to complete my English course to gain communication, interpersonal and social skills.
·I belong to a country where men still dominate women. They are treated to be incomplete without men. When I came to this country, I saw a different phase of a woman’s life. I realized that women and men are equal. There is no differentiation between them. I enrolled in an English course to meet up with the Australian culture and work atmosphere. I have noticed a lot of change in my life since I came to Australia. In India we live in a village, which is very far from the city, and I never had an opportunity to study further before and after my marriage. I always wanted to study more but I never had the access to it. Moreover the women are not permitted to get out of the house and study after marriage.
·I am studying at the moment and I wish to complete my course and become independent. I see myself as an independent workingwoman and I want to make this come true. Although English is not the most spoken English but in my country it is the official language. It is the most common language to communicate with people. Learning English has allowed me to access an incredible amount of information, which was not available otherwise. It has created many opportunities for me.
·I have been inspired by the local people and realized that how important is it to be independent. Australian women, their lifestyles, their career and their commitment towards their family in their home have influenced me.
·My daughter was born in Australia in Sep 2013 and is only 7 months old now. I want to teach English and I want her to have a bright and good future like Australian women. I want to be independent so as to make her independent and face the world with confidence.
·I’m a cook by profession and so is my husband. Cook occupation is in demand in Australia and there is acute skill shortage in some parts of Australia especially in regional areas. We will transfer our cooking skills if we allowed studying and working part time in Australia even for a temporary period. Transfer of skills may be useful for Australia and its citizens.
·I’m also contributing in Australian economy by paying fees to Australian Education Provider.
…
On 14 June 2014 a delegate of the Minister decided to refuse to grant the applicant a student visa. One of the reasons for doing so was that she was not satisfied that the applicant had established exceptional reasons for the grant of the visa.
The applicant applied to the Tribunal for review of the delegate’s decision. She was invited to attend a hearing conducted by the Tribunal on 2 February 2015. Shortly before that hearing she submitted a letter dated 29 January 2015 to the Tribunal setting out the circumstances which she requests be considered in connection with her application. Once again it is necessary to set out most of the body of that letter:
·I humbly submit that, I belong to a country where men still dominate women. They are treated to be incomplete without men. When I came to this country, I saw a different phase of a woman’s life. I realized that women and men are equal. There is no differentiation between them. I enrolled in an English course to meet up with the Australian culture and work atmosphere. I have noticed a lot of change in my life since I came to Australia. In India we live in a village, which is very far from the city, and I never had an opportunity to study further after my marriage. I always wanted to study more but I never had the access to it. Moreover the women are not permitted to get out of the house and study after marriage.
·I wish to submit that I have completed General English Course from Strathfield College in the month of December 2014 and begins certificate III in commercial cookery on 08/12/2014. I’m also enrolled in Diploma of Hospitality, which will be followed after completion of certificate III.
·I’m committed to complete both of these courses to be a qualified competent chef. As chefs are in great demand all around the world, I wish to work in hospitality field.
·If I return to India to lodge visa application offshore, my parents would not allow me to do so. I belong to a very backward orthodox family, where females are kept in house boundaries and are not allowed to work or study even locally.
·I am studying certificate III in cookery at the moment and wish to complete my course and become independent. I see myself as an independent workingwoman and I want to make this come true. Although English is not the most spoken language but in my country it is the official language. It is the most common language to communicate with people. Learning English has allowed me to access an incredible amount of information, which was not available otherwise. It has created many opportunities for me.
·I have been inspired by the local people and realized that how important is it to be independent. Australian women, their lifestyles, their career and their commitment towards their family and their home have influenced me. I want to stay in this country and dedicate my life to my daughter and my family. My daughter was born in Sep 2013 and is only 16 months old now. I want to teach her English and I want her to have a bright and good future like Australian women. I want to be independent so as to make her independent and face the world with confidence.
·My partner and I have full faith in Australia that our daughter will have a brighter future here. We have formed strong ties with the country and cannot think to lead it. This country has made me realize my calibre and taught me how to be independent and do everything on your own. I used to depend on my husband for everything I did. But now I do all my works on my own. I know as to how to do the daily works with any assistance.
·I am attaching the certificate completed study of English in Australia and Coe of enrolled studies.
At the Tribunal hearing, the applicant reiterated her written statement about the treatment of men and women in Australia and said that she found it was better to study in Australia and then return to India to work. She then gave evidence about her personal situation saying that her parents in-law were strict and that, living with them, she would not be able to study.
The Tribunal made its decision to affirm the decision of the delegate on 3 February 2015.
The Tribunal’s reasons
The Tribunal first noted that in order to satisfy the criteria for the grant of the visa the applicant had to establish exceptional reasons for the grant of the visa. It then noted the circumstances relied upon by the applicant in order to establish exceptional circumstances and found that they were not “exceptional” in any way as “most people want to improve their circumstances, including through study or obtaining qualifications, either for themselves and/or their family”. It also noted that many people considered that English or any second language was beneficial and that even though it had doubts about some of the applicant’s evidence including her treatment by her family and parents in-law and the treatment of women in India more generally, even if it were to accept her evidence on face value it did not find that those circumstances were exceptional. It went on to consider the submissions made by the applicant relating to the contribution to Australia through her occupation as a cook and the payment of fees to education providers but found that they did not rise to a level that satisfied it that they were exceptional.
For those reasons, the Tribunal concluded that the applicant’s circumstances were not exceptional and so the applicant did not satisfy cl.570.227. It may be noted that this conclusion is not framed in precisely the way the criterion in cl.570.227 is stated. That clause requires the applicant to establish “exceptional reasons for the grant of the subclass 570 visa”, rather than that her circumstances are exceptional. However, the Tribunal had, at [21] of its statement of reasons, correctly identified the test set by the Regulations and I am not satisfied that the paraphrasing of that test later in its reasons indicates that it did not understand what was required by the Regulations.
Consideration
Ground 1
The first ground in the application is that the Tribunal made a procedural error by not correctly assessing the information and evidence the applicant had produced before it. The applicant argues that she has sufficient reasons to have the application reviewed by the Court and then sets out in her application four paragraphs as follows:
…
i)The first applicant states she has exceptional cultural and social circumstances that prevent her from having a good education in India. This is because she is a female and belongs to a backward society where women are usually restricted from gaining a good education. In Australia, she has social and cultural freedom to engage in learning for the first time. The First Applicant states it will be unreasonable if she is required to stop her education mid-way and return to India where she will again have to restrict herself further learning.
ii)The applicants state that they have absorbed themselves into the Australian way of thinking and life. This means for the applicants, equality of gender and freedom to education, employment and status in society. In their backward society in India, they feel so underprivileged unable to further these basic human rights.
iii)The applicants state that both the First and Second applicants are cooks, and are in a category of workers that are in shortage in Australia. The applicants state it is beneficial to Australia if the applicants could obtain an education and train themselves with their own money. They state they are willing to work in areas where there is a shortage for this occupation in Australia.
iv)The First Applicant says she has spent much time and money in trying to obtain an education which is not available to her in India. The applicants requested the Court to look into their application on compassionate grounds.
It is clear that this ground is no more than a summary of the circumstances which were put forward by the applicant to support her claim to meet the criteria for the grant of the visa. In other words, this ground seeks the Court to consider for itself whether or not she has established exceptional circumstances for the grant of the subclass 570 visa. Understood in that way, the ground misunderstands the jurisdiction of the Court.
As explained at [4] above, once a non-citizen applies for a visa, the duty of the Minister is to consider that application and in particular, whether the criteria for the visa have been satisfied. The essential precondition to the grant of a visa is that the Minister be satisfied that the criteria are met: s.65 Migration Act1958 (Cth). The role of the Tribunal is to review a decision of the Minister in respect of s.65. In other words, it must decide for itself whether it is satisfied that the criteria are met. The role of the Court is different. It is limited to determining whether or not the Tribunal’s review of the Minister’s decision was affected by jurisdictional error. That is to say that the Court is not to determine whether it is satisfied that the criteria are met but only whether the Tribunal, in fulfilling its role, did so on a proper understanding of the law, a consideration of all the evidence and material before it, rationally, and having afforded the applicant relevant opportunity to present his or her case.
The first ground presented by the applicant is irrelevant to the Court’s proper role and must, for that reason, be rejected.
Ground 2
The second ground is that the applicants were not afforded natural justice, namely, that their evidence was not correctly assessed. It is well-established that, in certain circumstances, the failure by the Tribunal to assess or consider evidence put forward by an applicant for review might amount to jurisdictional error: see for example Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99. It is also well-established that the failure of the Tribunal to consider a claim that arises on accepted facts might amount to a denial of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affair (2003) 77 ALJR 1088.
However, in this case, the Tribunal did not fail to consider either any evidence put forward by the applicant or any claim that arose on established facts. As noted above, the Tribunal correctly summarised all of the circumstances relied upon by the applicant going to whether or not she had established exceptional circumstances but found that she did not meet the criteria. In light of that, it appears that the applicant’s real complaint is that the Tribunal did not accept that her circumstances established that there were “exceptional circumstances for the grant of the subclass 570 visa”. Understood in that way, the ground suffers from the same problems as the first ground and must be rejected.
Conclusion
There is no jurisdictional error in the Tribunal’s decision and the application is dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 30 September 2015
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