Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 884
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 884
File number(s): MLG 3225 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 13 September 2024 Catchwords: MIGRATION – application for judicial review – Student (Temporary) (Class TU) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that the applicant was not a genuine applicant for entry and stay as a student – where certain grounds raised by the applicant do not assert any jurisdictional error – where certain grounds raised by applicant seek impermissible merits review – whether Tribunal did not have regard to relevant circumstances – found Tribunal had regard to all relevant considerations – found no jurisdictional error on behalf of Tribunal – application dismissed. Legislation: Migration Act 1958 (Cth) ss 65, 359(2), 474, 476, 499
Migration Regulations 1994 (Cth) sch 2, cl 500.212
Cases cited: Craig v South Australia (1995) 184 CLR 163
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 12 August 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Stone of Australian Government Solicitor Second Respondent: Submitting appearance save as to costs ORDERS
MLG 3225 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PARAMJIT KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The First Respondent’s name be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Applicant have leave to amend the Application filed 26 October 2018 to seek a writ of mandamus directed to the Administrative Appeals Tribunal.
3.The Application filed 26 October 2018 be dismissed.
4.The Applicant pay the First Respondent’s costs in the fixed amount of $6,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
Before the Court is an Application filed on 26 October 2018, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 4 October 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The applicant is a citizen of India.
The applicant arrived in Australia on 31 December 2008 on a Student TU-573 visa.
On 30 December 2016 the applicant applied for the Visa.
On 14 February 2017, the Delegate refused to grant the Visa on the basis that the applicant did not satisfy cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 500.212 of Schedule 2 of the Regulations requires the Delegate to be satisfied the applicant was a genuine temporary entrant (GTE).
On 6 March 2017, the applicant applied to the Tribunal for review of the Delegate’s decision and appointed a registered migration agent to act as her representative. In the application for review, the Applicant nominated the registered migration agent’s email address <[email protected]> (representative’s email address) for correspondence.
On 12 April 2018, the Tribunal invited the applicant to provide information about her proposed course of study and her entry and stay in Australia as a student pursuant to s 359(2) of the Act. The Tribunal also provided the applicant with a ‘Request for Student Visa Information’ form (Request Form) to be completed by the applicant, and a copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (Direction 69). The applicant provided a response on 26 April 2018 (Request Form Response).
On 18 June 2018, the Tribunal emailed the applicant’s migration agent enclosing an invitation for the applicant to attend a hearing on 17 July 2018 at 9.00am with an information sheet attached (Hearing Invitation). The Tribunal requested the applicant provide the following documents within seven days of receipt of the invitation: a response to the Hearing Invitation; a copy of her current Confirmation of Enrolment (CoE); documents evidencing her past studies in Australia; and a written statement addressing the issue of whether she was a genuine temporary entrant (GTE). The Hearing Invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. The applicant provided a response to the Hearing Invitation on 16 July 2018. The applicant also provided evidence of her past enrolments and course completions, a written statement from the applicant addressing the issue of whether she was a genuine temporary entrant dated 15 July 2018 (GTE Statement), as well as a Statement of Purpose provided by her representative and dated 12 July 2018 (Statement of Purpose).
On 17 July 2018, the applicant appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Punjabi and English languages. The applicant’s representative also attended the hearing.
On 24 July 2017, following the Tribunal hearing, the applicant’s representative provided to the Tribunal additional documents including evidence of the applicant’s divorce whilst in Australia, medical certificates and tax returns.
On 4 October 2018 the Tribunal affirmed the decision of the Delegate to refuse to grant the applicant the Visa (Tribunal Decision).
Tribunal Decision
On 5 October 2018, the Tribunal sent a copy of the decision record to the applicant via her representative’s email address. The Tribunal identified that the issue was whether the applicant was a genuine applicant for entry and stay as a student, as provided for in cl 500.212 of Schedule 2 of the Regulations.
In considering whether the applicant satisfied cl 500.212 of Schedule 2 of the Regulations, the Tribunal had regard to Direction 69. The terms of Direction 69 required the Tribunal to have regard to factors including the applicant’s circumstances in her home country, potential circumstances in Australia, and the value of the applicant’s course to her future, and her immigration history.
At paragraphs [15] – [18] of the Tribunal Decision, the Tribunal had regard to the applicant’s circumstances in India, noting that her parents and brother live there and that her parents will financially support her in establishing a hospitality business upon her return to India. The Tribunal was not persuaded that the applicant’s circumstances in India were sufficient incentive for her to wish to return there permanently.
At paragraphs [ 20] – [23], the Tribunal considered the applicant’s circumstances in Australia, noting that the applicant divorced her husband in 2015, that she has friends in Australia and had been employed as a personal care assistant for almost six years. The Tribunal accepted that the applicant has no strong personal ties to Australia, however found that the applicant had economic reasons to remain in Australia, noting that her taxable income in 2016 and 2017 exceeded $30,000. The Tribunal found that the economic circumstances and political climate in India relative to the economic and political conditions in Australia were a further incentive for the applicant to seek to use the Student visa program to maintain ongoing residence in Australia. The Tribunal found the applicant had established a comfortable working life and had been able to earn an income far higher than what she might expect to earn in India.
At paragraphs [24] – [25], the Tribunal noted that the applicant’s intention to stay in Australia until the end of her course in December 2018 would bring her total stay in Australia to almost 10 years, and found that difficult to reconcile with the claim that she was a genuine temporary resident.
At paragraphs [26] – [30], the Tribunal considered the applicant’s study history and the value of the proposed hospitality course to her future. The Tribunal observed that the applicant had made significant changes to her study and proposed career objectives numerous times and found that this conduct displayed a pattern of changes which constituted a clear trend beyond the “reasonable changes” to career plans as contemplated in Direction 69. Further, the Tribunal did not accept the applicant’s evidence that she intended to open a hospitality business, finding that this claim was tailored to fit her current course, and that her vague evidence about her business plans suggested that little thought had gone into it.
At paragraphs [31] – [32], the Tribunal considered the applicant’s immigration history. The Tribunal noted that the applicant had never studied at a higher education level in the almost 10 years that she had been in Australia and viewed this non-compliance with a visa condition as a grave concern. Further, The Tribunal observed that in the almost 10 years the applicant had been in Australia, she had returned to India on three occasions. The Tribunal found that the applicant’s immigration history raised concerns that the applicant was misusing the Student visa program to maintain ongoing residence in Australia.
Having regard to the applicant’s circumstances overall, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and as such, she was not a genuine applicant for entry and stay as a student.
Accordingly, the Tribunal found that the applicant did not satisfy cl 500.212 of Schedule 2 of the Regulations and affirmed the decision under review.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal Decision on 26 October 2018. The Application contained the following grounds for judicial review (without amendment):
1. My subclass 500 visa is refused by immigration department and by AAT department.
2. The reason provided by both departments is that I do not meet genuine temporary applicant (500.212) criteria.
3. My concern is that how a student visa is refused for an existing student who is already in Australia studying for last many years and has completed all of the courses he/she was enrolled in.
4. I have a very strong history of academic performance in Australia. I completed all of my courses without any study gap.
5. I had sufficient funds to support my studies.
6. I never breached any condition associated to any of my student visas throughout the time I was in Australia.
7. I want to dispute the decision in Federal Circuit Court.
The Application contained an annexure titled “Grounds of Application” which further set out the applicant’s claims in narrative form. The applicant’s complaint appears to be that the Tribunal incorrectly determined that the applicant did not meet the GTE criteria and failed to take into account her academic history.
An affidavit annexing a copy of the Tribunal Decision was also filed in support of the Application. No other material was filed by the applicant in support of the Application.
The Minister filed a Response on 16 November 2018. The Response sought orders that the Application be dismissed and orders as to costs on the ground that the Tribunal Decision is not affected by jurisdictional error. The Minister also filed written submissions on 17 July 2024 and a list of authorities on 22 July 2024.
It is noted that the Application only seeks an order that the Tribunal Decision be quashed and does not seek a writ of mandamus directed to the Tribunal. The Minister consents to the Application being amended for the applicant to seek the requisite relief to enliven the Court’s jurisdiction under s 476(1) of the Act. I will order accordingly.
The hearing
The hearing took place on 12 August 2024.
The applicant is self-represented and was assisted by an interpreter in the Punjabi and English languages at the hearing. Ms Stone, solicitor, appeared for the Minister.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
The Regulations and Direction 69
Clause 500.212 of schedule 2 of the Regulations provides as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)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; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In accordance with s 499 of the Act, Direction 69 sets out the factors that the decision maker should have regard to when assessing cl 500.212(a) of schedule 2 of the Regulations for student visa applications.
CONSIDERATION
Grounds 1, 2 and 7
Grounds 1 and 2 merely state that the Delegate and the Tribunal refused to grant the applicant the Visa on the basis that the applicant did not meet the genuine temporary entrant criteria. Grounds 1 and 2 do not assert any jurisdictional error by the Tribunal.
Ground 7 merely seeks the Court undertake judicial review and does not assert any jurisdictional error by the Tribunal.
Grounds 3, 4, 5 and 6
To the extent that Ground 3 expresses dissatisfaction with the Tribunal Decision, the applicant seeks impermissible merits review. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ (Liang). Further, the weight to be given to particular evidence is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
By Grounds 4, 5 and 6, the applicant asserts, respectively, that the applicant has a strong academic record in Australia, has sufficient funds to support her studies and has not breached any of her visa conditions. Grounds 4, 5 and 6 do not assert any jurisdictional error on behalf of the Tribunal.
Grounds 3, 4, 5 and 6 therefore disclose no jurisdictional error on the Tribunal’s behalf.
Additional Grounds
At the hearing the applicant confirmed that the asserted error by the Tribunal was that it incorrectly determined that the applicant did not meet the GTE criteria and failed to take into account her academic performance and history. Those submissions are rejected. Firstly, in so far as they take issue with the Tribunal’s conclusion regarding whether the applicant satisfied the GTE criteria, the applicant seeks impermissible merits review: Liang. Secondly, in forming the view that the applicant did not intend to remain in Australia temporarily, the Tribunal took into account the significant period of time that the applicant had spent in Australia since arrival, her infrequent departures out of the country and her financial incentives to remain in Australia. At paragraph [33] the Tribunal concluded:
In weighing up the evidence the Tribunal is not persuaded by the applicant’s stated claim to be a genuine student intending to reside temporarily in Australia and having strong ties to her home country. The Tribunal finds the applicant’s study history, her lengthy stay in Australia, the questionable value of her proposed studies and her immigration history, suggest that the applicant is not a genuine student seeking to progress academically, but rather someone who is using the Student visa program to maintain ongoing residence in Australia.
Those findings were reasonably open to the Tribunal on the evidence before it. Further, at the hearing the applicant confirmed that she “did not want to go back” and wants to “continue her future here”. Thirdly, at paragraph [10] the Tribunal set out the applicant’s academic history as identified by her PRISIM record and, as set out above, at paragraphs [26] – [30], the Tribunal expressly considered the applicant’s study history and the value of the proposed hospitality course to her future. Accordingly, the Tribunal did not fail to take into account the applicant’s academic history.
There is otherwise no error in the Tribunal’s decision or processes.
CONCLUSION
For the above reasons, the Application must therefore be dismissed.
The Minister seeks the applicant pay its costs in the fixed amount of $6,000. I note that this is below the scale provided in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 13 September 2024
0
5
2