Khakh v Minister for Immigration and Anor

[2020] FCCA 254

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAKH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 254

Catchwords:
MIGRATION – Show cause – application for student (Temporary) (Class TU) (Subclass 500) visa – application for summary dismissal granted – application for judicial review dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Migration Act 1958 (Cth), ss.359, 359A

Migration Regulations 1994 (Cth), Sch.2, cl.500.212

Applicant: VIRENDERPAL SINGH KHAKH

First Respondent: MINISTER FOR CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 890 of 2019

Judgment of: Judge Jarrett

Hearing date: 6 February 2020

Date of Last Submission: 6 February 2020

Delivered at: Brisbane

Delivered on: 6 February 2020

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs;

2. The application filed on 15 October, 2019 be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth);

3. The applicant pay the first respondent’s costs fixed in the sum of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 890 of 2019

VIRENDERPAL SINGH KHAKH

Applicant

And

MINISTER FOR CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent made on 10 September, 2019 which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa.

2. This is a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The issue for determination is whether the application raises an arguable case for the relief claimed: FCC 44.12(1). In so satisfying the Court, the applicant is confined to the relief sought and the grounds mentioned in the application for judicial review: FCCR 44.13(1). If the Court is not so satisfied, it may dismiss the application: FCR 44.12.

3. On 15 November, 2019 a registrar of the Court directed that the applicant file and serve written submissions in support of his application for review.  He has not done that.  He has appeared by legal representative today who has sought an adjournment of the proceedings, which for reasons I have already given, I have refused.  There are no written submissions and there have been no oral submissions made on behalf of the applicant by his lawyer.

4. The first respondent has filed written submissions.  The first respondent submits that the application does not disclose an arguable case for the relief claimed and should be dismissed.

Background

1. The applicant is a citizen of India.  He first arrived in Australia on 14 November, 2015 as the holder of a Student (Temporary) (Class TU) (Subclass 572) visa.  On 14 March, 2018 he applied for the visa the subject of these proceedings.  In his statement accompanying the application, he submitted that he came to Australia with the intention of pursuing a course in accounting then decided that cooking was his ultimate passion so enrolled in cookery courses.  He intended to return to India and open a Thai restaurant.

2. On 1 May, 2018 the delegate refused to grant the visa on the basis that the applicant did not meet cl.500.212 in Schedule 2 of the Migration Regulations 1994 (Cth). That criterion, at that time, was in these terms:

   500.212

   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.

3. The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily and so did not meet cl.500.212(a).

4. On 10 May, 2018 the applicant applied to the second respondent for review of the delegate’s decision. On 11 June, 2019 the second respondent wrote to the applicant, pursuant to s.359 of the Migration Act 1958 (Cth) requesting that the applicant provide further information. On 30 August, 2019 the applicant responded to the request, providing submissions and further evidence including a confirmation of enrolment in a Diploma of Hospitality Management.

5. On 6 September, 2019 the applicant appeared before the second respondent to give evidence and present arguments in support of his application.  He was assisted by his representative and an interpreter in the English and Punjabi languages.

6. On 10 September, 2019 the second respondent affirmed the delegate’s decision not to grant the applicant the visa.

7. The second respondent identified that the issue on review was whether the applicant was a genuine applicant for entry and stay as a student.

8. The second respondent set out the relevant law and observed that it was required to have regard to Ministerial Direction No. 69 and assess the applicant against a number of specified factors contained therein.  The second respondent noted that the factors specified in Direction 69 were not to be used as a checklist but were intended to guide decision makers to weigh up the applicant’s circumstances as a whole.

9. The second respondent outlined to the applicant the information held in the Provider Registration and International Student Management System capturing his academic history.

10. The second respondent accepted that the applicant provided reasonable reasons for not undertaking the proposed course of study in his home country, namely that it was his dream to come to Australia and he could get good knowledge here. Whilst the second respondent accepted that the applicant had family ties to his home country, given the considerable period of time he had been in Australia, the absence of travel to India since 2017 and the lack of any arranged employment or business plan, it found that these circumstances were not a significant incentive for him to return to India. Given the applicant’s limited personal assets, his previous income in Australia and support he received in Australia financially, it found that the applicant’s economic circumstances as a whole presented a significant incentive not to return home.

11. Further, the second respondent was satisfied that the applicant had developed friendships and social connections to Australia.  The second respondent was concerned by the applicant’s pattern of enrolment since 2015.  He had held 16 confirmations of enrolment that had been cancelled.   He was not enrolled in any course from at least 21 January, 2019 until 2 September, 2019.  The second respondent considered that an applicant who was genuinely in Australia temporarily for the purpose of study would not remain unenrolled for that period given the investment both financially and in time in remaining in Australia. 

12. The second respondent did not consider the applicant’s changes to his career study pathways reasonable and did not consider that the applicant had demonstrated reasonable academic progression.  Accordingly, the second respondent found that the applicant was using the student visa program to circumvent the intentions of Australia’s migration program and was using the student visa primarily to maintain ongoing residence in Australia.

13. The second respondent considered the value of the proposed course of study to the applicant’s future.  It confirmed that the applicant’s stated intention was to open his own restaurant specialising in Thai food.  Whilst recognising that students will change their career aspirations and study pathways, the second respondent did not consider that the applicant’s change from accounting to cookery and hospitality management was reasonable, particularly when considering the applicant’s rate of academic progression and period of non-enrolment.  It found that the applicant’s stated intention of opening his own restaurant had been formulated to justify the current course of study.  It also considered that the applicant’s evidence in relation to the remuneration he expected to receive in India was uncertain and speculative.  The second respondent found that the course would have limited value in circumstances where the applicant intended to open his own restaurant and will not compete with others for advertised positions.

14. The second respondent considered the applicant’s immigration history.  It found that the applicant had not previously travelled to Australia prior to arriving in 2015 and had not held a visa that had been cancelled or considered for cancellation.

15. Having regard to all those matters, the second respondent was not satisfied that the applicant intended genuinely to stay in Australia temporarily and therefore concluded that the applicant did not satisfy cl.500.212(a) of Schedule 2 to the Regulations.

16. That recitation of the background facts and of the Tribunal’s decision is taken largely from the written submissions of the first respondent, which, according to my own reading of the Tribunal’s decision, accurately summarised the second respondent’s decision.

The application for review

1. The application filed on 15 October, 2019 sets out the following grounds of review (errors in the original):

   1. The Second Respondent failed to provide natural justice to the Applicant which is an error of law;

   2. The Second Respondent failed to afford Procedural Fairness to the Applicant as the Second Respondent misunderstood the explanation of the Applicant; and

   3. The Second Respondent failed to afford Procedural Fairness to the Applicant as the Second Respondent failed to take relevant information into consideration.

   4. The Second Respondent made an error in law for assessing the Direction 69 under Section 499 of the Migration Act as a checklist in reaching a decision.

2. Grounds one, two and three are devoid of content.  They are general asserts of error without any particularity.  There has been no attempt by the applicant to provide any particularity.

3. These grounds are nothing more than an invitation for the Court to engage in impermissible merits review of the second respondent’s decision, something that the Court cannot do.

4. I accept the first respondent’s submission that:

   a)there is no evidence to suggest that the second respondent failed to comply with its procedural fairness obligations under Division 5 of Part 5 of the Act;

   b)the applicant was on notice from the delegate’s decision that his ability to satisfy the cl 500.212 criteria would be the determinative issue on review.

   c)the second respondent complied with its obligations under ss.359A and 359AA of the Act when it put the applicant’s PRISMS records to him at the hearing, explained its relevance and the consequences of relying on that information and offered him an opportunity to seek an adjournment;

   d)there was otherwise no information the second respondent was required to put to him pursuant to s.359A of the Act.

5. To the extent that the applicant contends that the second respondent misunderstood the explanation provided by the applicant the applicant again has not identified what explanation he says the second respondent misunderstood.  The second respondent’s reasons for decision, however, record the matters put to it by the applicant.  It is not suggested that the second respondent has recorded those matters inaccurately.  It is clear that the second respondent took into account the matters relied upon by the applicant.  It took those matters into account when reaching its conclusion, just not in the way in which the applicant had hoped.

6. To the extent that the applicant says that the second respondent failed to take relevant information into account, he does not identify the information the second respondent failed to consider.

7. Ground four contends that the second respondent erred by using the considerations in direction 69 as a checklist in reaching its decision. As the first respondent correctly submits, the applicant has not pointed to any matter outside of the direction 69 factors which he says the second respondent ought to have considered. Nor has the applicant pointed to any factor in direction 69 considered by the second respondent which he says ought not to have been considered.

8. Again, as the first respondent points out, the second respondent at [10] of the reasons for decision expressly identified that the direction stipulates that a decision-maker should not use the factors as a checklist.

9. I accept that it should not be readily inferred that the second respondent did so.  I am not satisfied that the second respondent did so.

10. I accept the first respondent’s submission that read fairly and without an eye attuned to error, the second respondent used the factors in the direction, to the extent that they were relevant, to inform its consideration of whether the applicant intended genuinely to stay in Australia temporarily, weighed those factors for and against the applicant and made findings that were plainly open to it.

11. The second respondent’s reasons are coherent and logical.  They explain the basis upon which the second respondent reached the conclusions that it did. 

Conclusion

1. The applicant does not raise an arguable case to establish jurisdictional error on the part of the second respondent.   The application does not raise an arguable case for the relief claimed and I so find.  The application must be dismissed with costs.

2. Since these proceedings were commenced, the name of the first respondent has changed.  It is appropriate to amend the name of the first respondent accordingly.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on

Associate: 

Date: 10 February, 2020