KAUR v Minister for Immigration

[2015] FCCA 2390

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2390

Catchwords:
MIGRATION – Judicial review – student visa – direction number 53 genuine student.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

NBKT v The Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419

First Applicant: AMANDEEP KAUR

Second Applicant: SATVIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 382 of 2014

Judgment of: Judge Harland

Hearing date: 10 August 2015

Date of Last Submission: 10 August 2015

Delivered at: Adelaide

Delivered on: 10 August 2015

REPRESENTATION

The Applicants: Appeared in person

Counsel for the Respondents: Ms Stokes

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the name of the second respondent be amended to ‘Administrative Appeals Tribunal’.

2. That the application for judicial review filed on 9 October 2014 be dismissed.

3. The applicants are to pay the first respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 382 of 2014

AMANDEEP KAUR

First Applicant

SATVIR SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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.

1. This is an application for judicial review which was filed in this Court on 9 October 2014, seeking to quash a decision of what was then known as the Migration Review Tribunal which affirmed a decision of the Delegate of the Minister not to grant the applicant a student visa.  The applicant was first granted a student visa on 8 June 2009 and had two further student visas granted to her, the last of which expired on

   
   

   17 July 2013. 

2. The applicant lodged an application for a further student visa on 16 July 2013 seeking to stay in Australia for a further four year period in order to undertake an Advanced Diploma in Agribusiness Management and Marketing.  The applicant has successfully completed courses in English for Academic Purposes, Certificate II in Horticulture, Diploma of Horticulture and Advanced Diploma of Horticulture.  The applicant seeks to undertake further advanced studies in horticulture and had sought to also undertake courses in marketing but changed her position on that when she was before the Tribunal. 

3. The applicant sets out two grounds for review.  Ground 1 complains in summary that the Tribunal failed to take into account that the applicant told the Tribunal that the college counsellor had advised all students to enrol in the marketing course that she also sought to enrol in and further advised that if students did not think that those courses would assist them, they could withdraw from the courses.  The applicant says that she told the Tribunal member during the hearing that it was not compulsory for her to study those courses and she complains that the Tribunal member failed to put weight on that fact. 

4. It is clear that one of the issues that the Tribunal member raised with the applicant was the usefulness of the marketing courses for her future plans in India.  The second ground complains that the Tribunal considered that the applicant had completed sufficient courses and it found that she was not a genuine student.  The applicant says that she does not see how she could not be a genuine student given that she has continued to study and has successfully completed several courses and has done well.  She says the Tribunal made an error in deciding that she has sufficient qualifications and that the Tribunal has taken into account an irrelevant consideration in that regard. 

5. The Delegate and the Tribunal found that the applicant did not satisfy clause 572.223 of the Migration Regulations 1994 (Cth). That regulation refers to the factors that the Minister needs to consider when considering whether or not to grant a student visa. The regulations are further informed by direction number 53, assessing the genuine temporary entrant criteria for student visa applications which is also made under the Act. The factors that the Tribunal needs to have regard to are the circumstances of the applicant in her home country, potential circumstances in Australia and the value of the course to the applicant’s future.

6. The applicant’s immigration history, including any previous applications for an Australian visa or visa for other countries is relevant. Other relevant factors include the applicant’s personal ties to her home country, whether or not she has significant incentive to return home, whether the course she is seeking to undertake is consistent with her current level of education and whether or not that course will improve her employment prospects in their home country. 

7. The direction makes it clear that these factors are to be considered holistically and not simply as a checklist.  When reading the decision of the Tribunal, it is clear that the Tribunal had those factors in mind and the Tribunal specifically refers to them. The Tribunal refers to factors that both are in favour of the applicant’s application and those that are not in favour and noted in particular, that the applicant has family in India and has a child in India and so those factors were supportive of a finding that she had genuine connections to India. 

8. The real issue of concern for the Tribunal was the fact that the applicant has had four years of study in Australia and has completed several courses and would be seeking another four years of study to undertake several further courses. It is apparent though, that during the course of the Tribunal hearing, the course that the applicant wanted to complete was the Advanced Diploma of Agribusiness Management.  The Minister points out in its submissions that ground 1 could be seen as making a complaint that the Tribunal failed to consider a relevant issue, that issue being the advice that the counsellor had given the applicant and other students. 

9. It is apparent, however, from looking at paragraphs 25 and 28 in particular of the Tribunal decision that the Tribunal did take into account the fact that the applicant had been given that advice by a counsellor, as had other students, and had noted that the applicant was saying that she did not need to do those marketing courses.  Therefore, it cannot be said that the Tribunal failed to take into account a relevant consideration.  To the extent that there’s a complaint about the weight that the Tribunal put on that factor, that is a matter that is within the exclusive purview of the Tribunal and not the Court, as the issue of what weight to give evidence is a matter of fact and that is an issue for the Tribunal and not the Court. 

10. An authority for that can be found at NBKT v The Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419. The second ground is complaining that the Tribunal took into account an irrelevant consideration which was the courses that the applicant had already completed. Whilst it is possible to find jurisdictional error where a Tribunal has taken into account an irrelevant factor, it is clear by reference to clause 572.223, amplified by direction 53, that the history of study and the nature of those courses as well as the proposed future courses are directly relevant to the decision as to whether or not to grant a visa.

11. What is clear here is that the Tribunal assessed the courses that the applicant had completed as against her intention to return to India to work in a family farm and it is clear too, that at least partly what the applicant seeks to do in ground 2 is to invite the Court to review the decision on its merits.  The court does not have the power to undertake a merits review.  Merits reviews are undertaken by the Tribunal and the Delegate.  The purpose of a judicial review is quite narrow and it is necessary to establish a jurisdictional error. 

12. It is not possible for the Court to review the merits of the application, even if the Court would have come up with a different result.  In the circumstances and having considered the material in the Court Book and the submissions, neither ground 1 nor ground 2 of the application can be made out. 

13. I will dismiss the application and order that the applicants pay the first respondent’s costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  2 September 2015