Kaur v Minister for Immigration and Border Protection

[2015] FCA 795

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2015] FCA 795

Citation:	Kaur v Minister for Immigration and Border Protection [2015] FCA 795
Appeal from:	Kaur v Minister for Immigration & Anor [2015] FCCA 1369
Parties:	AMANDEEP KAUR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	SAD 153 of 2015
Judge:	BESANKO J
Date of judgment:	6 August 2015
Legislation:	Migration Act 1958 (Cth) s 499 Migration Regulations 1994 (Cth) Schedule 1
Date of hearing:	4 August 2015
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	16
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
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 153 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

AMANDEEP KAUR
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	6 AUGUST 2015
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The name of the second respondent be amended to read “Administrative Appeals Tribunal”.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of the appeal 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 153 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

AMANDEEP KAUR
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	6 AUGUST 2015
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an appeal from an order made by the Federal Circuit Court on 19 May 2015.  On that day, the Federal Circuit Court ordered that the appellant’s application for judicial review be dismissed.  The appellant had sought an order quashing a decision of the Migration Review Tribunal (“the Tribunal”) to affirm a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant the appellant a Student (Temporary) (Class TU) visa.

2. The history of the matter is as follows. On 28 June 2013, the appellant applied to the Minister for a Student (Temporary) (Class TU) visa. At that time, such a visa contained a number of subclasses (see item 1222 of Schedule 1 to the Migration Regulations 1994 (Cth)) (“the Regulations”). The Tribunal said that in view of the appellant’s proposed course of study, the relevant subclass was subclass 572. Clause 572.223(1)(a) of the Regulations contains a requirement which is to be satisfied at the time of decision as follows:

   (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;

   (ii)       the applicant’s immigration history; and

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

   (iii)      any other relevant matter.

3. The delegate of the Minister refused to grant the visa because the appellant did not satisfy the requirements of clause 572.223(1)(a).  The delegate was not satisfied that the appellant was a genuine applicant for entry and stay as a student because she was not satisfied that the appellant genuinely intended to stay in Australia temporarily.

4. The appellant, who lives in Adelaide, South Australia, sought a review of the delegate’s decision by the Tribunal. On 15 August 2014, the Tribunal wrote to the appellant advising her that she was invited to appear before the Tribunal on 18 September 2014 to give evidence and present arguments relating to the issues in her case. The Tribunal advised the appellant that the Tribunal member would conduct the hearing in Melbourne, Victoria, and that arrangements were being made for the appellant to appear by telephone. The appellant was asked to contact the Tribunal if she wished to attend the hearing in person. The Tribunal’s letter attached a copy of a direction made by the Minister under s 499 of the Migration Act 1958 (Cth), being Direction No. 53 “Assessing the genuine temporary entrant criterion for Student visa applications” (“the Direction”).

5. The appellant completed a response to the invitation (a document entitled “Response to Hearing Invitation”) on 10 September 2014 and in that response she advised that neither she nor her representative would take part in the Tribunal hearing scheduled for 18 September 2014.  In those circumstances, the Tribunal determined the matter on the evidence available to it.

6. The Tribunal identified a number of matters that it considered it was required to have regard to in relation to by reason of the Direction.  Those matters were the following:

   Ÿthe applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   Ÿthe applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   Ÿif the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   Ÿany other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

7. The Tribunal said that the Direction made it clear that the factors specified in it should not be used as a checklist but rather, were intended to guide decision makers to weigh up an applicant’s circumstances as a whole, in reaching a finding about whether an applicant satisfied the genuine temporary entrant criterion.

8. The Tribunal said that the appellant was a 35 year old Indian female who arrived in Australia in May 2009 as the holder of a dependent subclass 572 visa which expired on 1 October 2011.  The Tribunal said that on 1 November 2011, the appellant was granted a further dependent subclass 572 visa which expired on 20 July 2013.  It said that in her application for a student visa, the appellant stated that her intended courses were a Certificate IV in Business and a Diploma of Business each with the Southern Cross Education Institute.  The Tribunal said that the appellant did not respond to an invitation from the Department to address the reasons she wished to study these courses.

9. The Tribunal said that the appellant had arrived in Australia over five years ago and had only enrolled in the identified courses in 2013.  The appellant had not provided any reasons why she delayed enrolment in these courses for such a considerable period.  Nor had she provided reasons as to why she had chosen to study in Australia, rather than India, or information identifying the relevance of the courses of study to her academic and employment background and to her future career or education plans.

10. The Tribunal concluded that, having regard to the appellant’s visa history, she was using the student visa program to circumvent Australia’s permanent migration programs and maintain ongoing residence.  The Tribunal was not satisfied on what it described as the very limited evidence before it that the appellant genuinely intended to stay in Australia temporarily and that she met the requirements of clause 572.223(1)(a). 

11. The Tribunal said that, with the exception of subclass 580, the same criterion applied to other subclasses within the visa Class TU, and the appellant’s application was refused for similar reasons.  The Tribunal said that there was nothing before it which suggested that the appellant met the prescribed requirements of subclass 580.

12. The Federal Circuit Court found that the appellant failed to identify a jurisdictional error in the decision of the Tribunal, and it found that nothing was said by the appellant to articulate or identify any jurisdictional error.  The Court held that the critical finding made by the Tribunal was open to it (Kaur v Minister for Immigration & Anor [2015] FCCA 1369 at [2] and [6]).

13. The appellant’s notice of appeal  contains the following grounds of appeal:

    1.I am the respondent and I am authorised to make this affidavit.

    2.There is jurdictional [sic] error in the tribunals judgment.

    3.I had forgoten [sic] the day of hearing and tribunal didnot give me time to appear for appeal or even conduct hearing on phone.  They failed to call me and take my hearing.

    4.I explained Court my stand but the Respected Judge failed to figure out jurdictional [sic] error and kept asking me that why I didnot go tribunals hearing.  I feel judgment is wrong and made on wrong grounds.

14. The appellant appeared in person before me.  She had the assistance of an interpreter.  She did not say anything that suggested there had been an error by the Federal Circuit Court.  When I asked her whether she had declined an invitation to attend a hearing before the Tribunal she said that she could not recall.  She confirmed it was her signature on the document entitled “Response to Hearing Invitation”.  I reject ground 3 in the appellant’s notice of appeal.

15. I have carefully considered the Tribunal’s decision.  I am unable to detect any error, let alone a jurisdictional error, in that decision.

16. In those circumstances, the appeal must be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:        

Dated:        6 August 2015