Kaur v Minister for Immigration and Border Protection

[2015] FCA 1354

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2015] FCA 1354

Citation:	Kaur v Minister for Immigration and Border Protection [2015] FCA 1354
Appeal from:	Kaur & Anor v Minister for Immigration & Anor [2015] FCCA 2390
Parties:	AMANDEEP KAUR and SATVIR SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	SAD 268 of 2015
Judge:	BESANKO J
Date of judgment:	2 December 2015
Legislation:	Migration Act 1958 (Cth) ss 65, 499 Migration Regulations 1994 (Cth) Sch 2, cl 572.223
Date of hearing:	26 November 2015
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	25
Counsel for the Appellants:	The Appellants appeared in person
Counsel for the First Respondent:	Mr P d’Assumpcao
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent entered a submitting notice, save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 268 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

AMANDEEP KAUR
First Appellant

SATVIR SINGH
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	2 DECEMBER 2015
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs fixed in the sum of $6,439.00.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 268 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

AMANDEEP KAUR
First Appellant

SATVIR SINGH
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	2 DECEMBER 2015
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

Introduction

1. On 9 October 2014, the appellants made an application for judicial review in the Federal Circuit Court of Australia.  On 10 August 2015, the Federal Circuit Court made an order that the application be dismissed (Kaur & Anor v Minister for Immigration & Anor [2015] FCCA 2390). This is an appeal by the appellants from the order made by the Federal Circuit Court.

2. On 16 July 2013, the appellants made applications for Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (“the Act”). The Student (Temporary) (Class TU) visa had a number of subclasses and the relevant subclass in the appellants’ case was Subclass 572. A delegate of the Minister decided to refuse to grant the visas. The delegate did so on the ground that the appellants had not satisfied the requirements of cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) and he said that he was not satisfied that the first appellant was a genuine applicant for entry and stay as a student because he was not satisfied that she genuinely intended to remain in Australia temporarily.

3. Clause 572.223(1)(a) of the Regulations provided relevantly:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)        the applicant’s circumstances; and

   (ii)       the applicant’s immigration history; and

   (iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant;

   (iv)      any other relevant matter; and

   (b)       …

4. In making their respective decisions, the delegate and the Tribunal were required to have regard to Direction No 53, Assessing the genuine temporary entrant criterion for Student visa applications.  This Direction was made under s 499 of the Act.

5. By application received on 10 October 2013, the appellants applied to the then Migration Review Tribunal for a review of the delegate’s decision.  The Tribunal conducted a hearing on 31 July 2014.  On 16 September 2014, the Tribunal delivered its decision whereby it affirmed the decisions not to grant the appellants’ Student (Temporary) (Class TU) visas. 

   The Tribunal’s Reasons

6. The first appellant applied for the relevant visa as the primary applicant and her husband as a secondary applicant. 

7. The Tribunal said that the first appellant was a 24 year old Indian National who came to Australia with her husband in June 2009.  The first appellant was granted a student visa Subclass 572.  She commenced a course in hairdressing, but in November 2009 she deferred her studies when she became pregnant.  She later gave birth to a child who is now approximately 4 and-a-half years old and lives in India.  In February 2010, the first appellant resumed her studies in hairdressing.  However, the college where she was studying closed down in March 2010.  She changed her studies and commenced a course in horticulture leading to a diploma level. 

8. The Tribunal summarised the first appellant’s studies thereafter in the following way:

   In March 2011 the applicant completed the certificate III in the horticulture course and commenced certificate IV in horticulture.  She completed this course in October 2011 and in December 2011 she commenced the diploma of horticulture completing this course in or around June 2012.  She commenced a 1 year advanced diploma of horticulture and completed this in May 2013.  She was refused the visa by the delegate in September 2013.  The applicant notwithstanding the delegate’s decision to refuse the visa, she continued her studies and between July 2013 and July 2014 she completed a diploma of agribusiness management.

9. At the time of the visa application, the first appellant submitted four certificates of enrolment.  She has completed one of those courses.  The other three certificates of enrolment related to the following courses:

   (1)Advanced Diploma of Agribusiness Management (19 November 2014 to 17 November 2015);

   (2)Diploma of Marketing (11 January 2016 to 6 January 2017); and

   (3)Advanced Diploma of Marketing (27 February 2017 to 23 February 2018).

10. Before the Tribunal, the first appellant claimed that her family was from an agricultural background and that they had large farms growing various crops.  The courses of study were relevant to her family background and would equip her with the skills and knowledge necessary to further enhance profits from the family farm.  The first appellant also referred to the fact that her parents and parents-in-law and extended family were still in India.

11. The first appellant said that her future career plan was to open her own nursery business on a large scale and to extend the family farm business. 

12. The Tribunal asked the first appellant how she considered the Diploma of Marketing and the Advanced Diploma of Marketing were necessary to her future plans to expand the family farm in India. The first appellant told the Tribunal that the counsellor at the college had advised her to take these courses as a necessity.  After a short adjournment, the first appellant told the Tribunal that the counsellor had advised many students to take these courses (i.e., the marketing courses) and most students were given this package of courses as it would benefit them in the future.

13. The first appellant referred to the fact that her young child was in India, in addition to her whole family, and that she had continued studying after the delegate’s decision to refuse her application for the visa.  The first appellant’s representative then told the Tribunal that the first appellant only sought to complete the Advanced Diploma of Agribusiness Management and that she would abandon the marketing courses. 

14. The Tribunal said that the fact that the first appellant had continued to study and had a very good record as a student, having successfully completed several courses since she arrived in Australia, stood in her favour.  The Tribunal said that it accepted that the first appellant’s family and her husband’s family were all located in India and that this indicated strong ties to her country.  The Tribunal noted that the first appellant’s child, who was born in Australia, was living in India and was not an applicant on the application.  The Tribunal said that that was an indicator that the first appellant may be planning to return to India.

15. The Tribunal said that it was puzzled by the first appellant’s ready abandonment of her plans to study marketing courses and that it left the Tribunal with some doubt about the first appellant’s intentions. The Tribunal formed the view that the first appellant was using the student visa to circumvent the intentions of the migration program and/or to maintain ongoing residence. The Tribunal said that it had considered the remaining one year course of an Advanced Diploma of Agribusiness Management. The Tribunal said that it had decided that the first appellant had already acquired several qualifications in horticulture and agribusiness management which appeared to be ample qualifications for the first appellant’s stated future plan to expand the family farm in India. The Tribunal said that it was not satisfied that the first appellant’s proposal to undertake the further course was for a genuine intention as a student and to remain in Australia temporarily. The Tribunal decided that the first appellant did not meet cl 572.223(1)(a) and, therefore, did not meet cl 572.223.

16. As far as the second appellant was concerned, the Tribunal noted that it was not submitted that he met the primary criteria for a student visa.  He was assessed against the secondary criteria and he did not meet that criteria because the first appellant did not meet the primary criteria.  The Tribunal said that the criteria the first appellant failed to meet were relevant to all other subclasses except Subclass 580.  It said that in respect of Subclass 580, there was no material before the Tribunal that suggested the first appellant met the prescribed criteria for that subclass.

    The Federal Circuit Court

17. The Federal Circuit Court judge noted that the application for judicial review contained two grounds.  The first ground was to the effect that the Tribunal failed to take into account that the first appellant 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 first appellant claimed that she told the Tribunal during the hearing that it was not compulsory for her to study those courses and she complained that the Tribunal failed to place any weight on that fact. 

18. The second ground was to the effect that the Tribunal considered that the first appellant had completed sufficient courses and it found that she was not a genuine student.  The first appellant contended that she did not see how she could not be a genuine student given that she had continued to study and had successfully completed several courses and had done well.  She claimed that the Tribunal made an error in deciding that she had sufficient qualifications and that, in that regard, the Tribunal had taken into account an irrelevant consideration.

19. The Federal Circuit Court judge noted that the Tribunal had referred to factors that were both in favour of the first appellant’s application and those which were against her application.  The Tribunal had noted, in particular, that the first appellant had family in India and had a child in India and that those factors were supportive of a finding that she had genuine connections to India. 

20. The Federal Circuit Court judge said that it was clear from the Tribunal’s reasons that it had taken into account the fact that the first appellant had been given advice by a counsellor, as had other students, and had noted that the first appellant was saying that she did not need to do those marketing courses.  The judge concluded that it could not be said that the Tribunal had failed to take into account a relevant consideration.  He said that matters of weight were not matters about which the first appellant could complain on an application for judicial review.

21. The Federal Circuit Court judge rejected the argument that the Tribunal had exceeded its jurisdiction by taking into account the courses the first appellant had already completed.  The judge then noted that the appellants were raising matters which went to the merits and that they were not matters which could be raised on an application for judicial review.

    The Appeal to this Court

22. There is one ground of appeal and it is in the following terms:

    Federal Circuit court dismissed my case and said no error MRT judgment which is wrong.  Tribunal made many errors in its decision.  Tribunal is taking vague definition of “Genuine student”.  A student who has passed all courses and doing well in studies is being labelled as non genuine student.  If Department of Immigration and border protection and Administrative appeals Tribunal have some criteria that visas to applicants for certain courses will only be granted then it should be made public.  Officers are playing role of our parents or educational advisors deciding which course we should study and and (sic) at what level.  Migration Law does not give authority to Members or officers to decide what course is good for applicant and suitable for their career and decide genuineness of student based on it.  Member made jurdictional (sic) error in his decision.

23. The first and second appellants appeared in person with an interpreter on the hearing of the appeal.  They did not add a great deal to what appears in the ground of appeal.  Their basic complaint was that the first appellant’s record showed that she was a successful student and that it was not up to the delegate or the Tribunal to decide what courses were appropriate for her to undertake.

24. It is true that the Tribunal accepted that the first appellant had a very good record as a student and that the courses that she had undertaken and qualifications she had received were relevant to her stated future business plan.  Those matters and others (see paragraph 14 above) were recognised by the Tribunal as being in favour of a grant of the visa.  However, there were other matters to take into account (see paragraphs 12 and 15 above) and after the Tribunal had done so, it reached a conclusion which I think was open to it.  I think that the Tribunal was entitled to take into account the nature of the proposed course, the courses undertaken to date, and the first appellant’s stated reasons for undertaking the courses and to form an opinion about those matters.  That is what the Tribunal did and I cannot detect any jurisdictional error in its reasons.

    Conclusion

25. The appeal is dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:        

Dated:        2 December 2015