Khurana v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 314
•12 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khurana v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 314
File number(s): MLG 2709 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 12 April 2024 Catchwords: MIGRATION LAW – application for judicial review – Student (Temporary) (Class TU) visa – decision of Administrative Appeals Tribunal – where Tribunal not satisfied applicant met genuine temporary entrant criteria in cl 500.212 of Sch 2 to Migration Regulations 1994 (Cth) – consideration of whether Tribunal failed to properly and/or reasonably consider whether applicant met cl 500.212 and/or properly or reasonably applied Ministerial Direction No. 69 – where Tribunal’s conclusions reasonably open on the evidence before it – application dismissed with costs. Legislation: Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), pt 2, sch 2
Migration Regulations 1994 (Cth), sch 2, cl 500.212
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 13 March 2024 Date of hearing: 13 March 2024 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms K Petrovski of Sparke Helmore ORDERS
MLG 2709 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BELA KHURANA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
12 APRIL 2024
THE COURT ORDERS THAT:
1.The applicant’s application filed on 10 September 2018 be dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $5,000.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 15 August 2018. By that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘student visa’).
BACKGROUND
The applicant is a citizen of India.[1]
[1] Court book at page 2.
Application for student visa on 25 November 2016
On 25 November 2016, the applicant applied for a student visa to undertake study in the Vocational Education and Training sector.[2]
[2] Court book at pages 1 to 21.
On 2 February 2017, a delegate of the first respondent refused the applicant’s student visa application.[3] In substance, the delegate was not satisfied that the applicant met the criteria in clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) in that the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.[4]
[3] Court book at page 55 and following.
[4] Court book at page 57 and following.
Application to Tribunal on 20 February 2017
On 20 February 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[5]
[5] Court book at pages 61 to 62.
By letter 13 April 2018, the Tribunal invited the applicant to provide some information about her proposed studies and stay in Australia as a student.[6] Relevantly, the Tribunal advised the applicant that it was required to have regard to Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’. The Tribunal also provided the applicant with a copy of this Ministerial Direction.
[6] Court book at pages 68 to 69.
By letter dated 14 June 2018, the applicant was invited to attend a hearing before the Tribunal to provide evidence and submissions in support of her application, scheduled for 11 July 2018.[7] The applicant advised the Tribunal that she would be attending the hearing with her representative.[8]
[7] Court book at page 86.
[8] Court book at page 94.
The applicant’s representative also provided a pre-hearing submission in support of the applicant’s application.[9] Relevantly, that submission addressed the genuine temporary entrant criteria in which the applicant’s representative addressed the issue of the applicant’s limited travel to India whilst living and studying in Australia.
[9] Court book at pages 97 to 100.
On 11 July 2018, the applicant attended the Tribunal hearing together with her representative.[10]
[10] Court book at pages 103 to 105.
On 15 August 2018, the applicant was notified by letter that the Tribunal had determined to affirm the decision under review to refuse her student visa application.[11]
[11] Court book at page 107 and following.
TRIBUNAL DECISION
The Tribunal’s decision record of 15 August 2018 is at pages 109 to 120 of the court book.
The Tribunal noted that the applicant had initially arrived in Australia on 7 November 2008, having been granted a Student visa (TU 573) offshore.[12]
[12] Tribunal decision record dated 15 August 2018 at paragraph [11].
At paragraphs [12] to [15], the Tribunal set out the applicant’s educational history whilst in Australia. At paragraph [17], the Tribunal observed that the applicant had given evidence that on her return to India she intended to go into business with her father who ‘operates in the share market’. At paragraph [20], the Tribunal observed that the applicant confirmed that she had not undertaken any study in the 11 months prior to the commencement of her current course.
Relevantly, at paragraph [21], the Tribunal discussed the fact that the applicant had only returned to India for four days in a period of almost 10 years in Australia.
The Tribunal then set out the applicant’s friendships and family connections to Australia.[13] Relevantly, at paragraph [27], the Tribunal noted that the applicant had been an Interior Designer in India for five years prior to coming to Australia and that she could return to this vocation.
[13] Tribunal decision record dated 15 August 2018 at paragraphs [23] to [26].
At paragraphs [28] to [30], the Tribunal then discussed the applicant’s links to India.
At paragraph [31], the Tribunal set out the requirements of clause 500.212 in full. The Tribunal then went on at paragraph [32] to outline its reasons for concluding that the applicant is not a genuine applicant for entry and stay in Australia as a student. Relevantly, in coming to this conclusion, the Tribunal noted:
(a)the fact that the applicant had undertaken a number of VET level courses in Australia over a nine-year period when she had completed a Master of Commerce Degree in India prior to her departure and that the applicant was of the view that the VET courses would materially assist her future career prospects in India;
(b)the very limited travel back to India over the nine-year period whilst in Australia and that this indicates a lack of strong ties back to India;
(c)the fact that the applicant has had ongoing and consistent work whilst in Australia; and
(d)notwithstanding having availed herself of a 485 visa, the applicant then went on to undertake further VET courses rather than return to India.
The Tribunal therefore concluded that it was not satisfied that the applicant intended to genuinely stay in Australia temporarily, and as such, was not satisfied that the applicant met the requirements of clause 500.212(a).[14]
[14] Tribunal decision record dated 15 August 2018 at paragraph [33].
At paragraphs [34] to [42], the Tribunal went on to consider Ministerial Direction No. 69.
Having regard to all of these relevant factors, the Tribunal concluded that the applicant did not meet the criteria for the grant of a subclass 500 (Student) visa, nor did she claim to meet the criteria for a Subclass 590 (Student Guardian) visa.[15]
[15] Tribunal decision record dated 15 August 2018 at paragraph [44].
As such, the Tribunal determined to affirm the decision under review.[16]
[16] Tribunal decision record dated 15 August 2018 at paragraph [45].
PROCEEDINGS IN THIS COURT
The applicant filed her application for judicial review in this court on 10 September 2018.
In her application for judicial review, the applicant set out six ‘grounds’ of review. The ‘grounds’ of review in the applicant’s application are as follows:
1.The ministerial direction No. 69 and clause 500.212 has been applied inappropriately to asses the visa applicant a non-genuine student for refusal of visa application.
2.The merits of visa application and review could properly be taken into consideration to determine a legal issue of some importance.
3.The actual issue involved was not considered appropriately. The decision of the delegate is based on assumptions and presumptions.
4.The member did not keep personal circumstances of visa applicant in consideration and inappropriately upheld the decision of delegate in a procedural manner.
5.The delegate did not consider the degree of hardship being caused to applicant and her family members with refusal of visa.
6.The determination of application has resulted in unfairness to visa applicant who was on the edge of completion of her skills after spending huge amount.
Notwithstanding orders made by Registrar Carlton on 16 April 2020 permitting the applicant to file any amended application and written submissions 28 days prior to the hearing, the applicant did not do so.
Hearing on 13 March 2024
Before turning to address each of these ‘grounds’ of review, I note that the applicant appeared on her own behalf before me at the hearing on 13 March 2024.
After explaining the nature of judicial review proceedings and the function of this court in determining the judicial review application, I invited the applicant to make submissions in support of her application. In summary, the applicant submitted that she was a genuine student and that this was evident from looking at the way in which she had completed her studies. In particular, the applicant says that she never missed any classes, that she submitted and completed her assessments and that the courses that she undertook were linked to her desire to develop practical skills which would assist her in her endeavours when returning to India.
In oral submissions, the applicant essentially took issue with the Tribunal’s findings that she was not a genuine temporary entrant by reference to the type of courses that she was undertaking. The applicant conceded that she had undertaken a Master’s degree in India, and that by comparison, the courses that she had undertaken in Australia were at a lower level. However, she said that this was not evidence that she was not a genuine student, rather, it was evidence that she was seeking to develop skills that would assist her on her return to India.
The applicant also said that prior to coming to Australia, she had worked as an interior designer for five years and that she was developing business skills that would assist her to further her work in that field on her return. She said that she needed to develop leadership and business development skills to assist her in furthering her business interests on her return. She also said that if she were to continue to undertake studies in accounting, that this would lead her towards practicing as a chartered accountant which was not what she wished to do.
It is implicit in the applicant’s submissions that she claims that the Tribunal misapplied the criteria under clause 500.212 and under Ministerial Direction No. 69 in determining whether she was a genuine temporary entrant.
The applicant also agreed that she had spent very little time in India whilst undertaking her studies in Australia. She said that this was due to her work obligations which made it very difficult to take more time off work to return to India, rather than being indicative of her lack of connection to India. The applicant maintained that she has strong ties to India and that she intends to return to India after she completes her studies. Again, it is implicit in the applicant’s submissions that the Tribunal’s failure to accept this evidence was indicative of its misapplication of the criteria in clause 500.212 and Ministerial Direction No. 69.
GROUNDS OF REVIEW
I will now turn to address each of the applicant’s grounds of review in turn.
Grounds 1 to 3
Grounds 1 to 3 (to the extent that ground 3 takes issue with the Tribunal’s decision rather than the delegate’s decision) essentially argue that the Tribunal failed to properly and/or reasonably consider whether the applicant met the requirements of clause 500.212 and/or properly or reasonably applied Ministerial Direction No. 69.
For the following reasons, these grounds are not made out.
In considering whether the applicant satisfied the requirements of clause 500.212(a), the Tribunal had to consider whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily. In determining this issue, the Tribunal must consider the applicant’s circumstances, the applicant’s immigration history and any other relevant matter.
It is clear from a fair reading of the Tribunal’s decision that the Tribunal was aware of the applicant’s explanation for her academic history whilst in Australia. The Tribunal noted the applicant’s submissions, repeated before this court, that her studies in marketing, leadership, management and the like were relevant to her desire to have a team of her own in her business.[17]
[17] Tribunal decision record dated 15 August 2018 at paragraph [18].
The Tribunal also understood that it was the applicant’s evidence that her intention was to return to India, that her father lived there and that her base was there and that she did not intend to remain living in Australia permanently.[18]
[18] Tribunal decision record dated 15 August 2018 at paragraphs [17] and [22].
Ultimately, however, it was open to the Tribunal to accept or reject the applicant’s evidence in this regard. It is apparent from a fair reading of the Tribunal’s reasons that it gave consideration to the applicant’s evidence and submissions, but ultimately did not accept it. At paragraph [32] of its reasons, the Tribunal clearly set out its reasoning in rejecting the applicant’s evidence. The Tribunal’s reasons were reasonably open on the material before it. Its conclusions and reasoning do not disclose any jurisdictional error.
Similarly, the Tribunal correctly understood the matters to which it had to have regard under Ministerial Direction No. 69 and properly considered those matters, to the extent that they were relevant. The Tribunal’s reasoning and conclusions in this regard were equally open on the material before it. No jurisdictional error is disclosed.
I also agree with the Minister’s submission that to the extent that ground 2 expresses a dissatisfaction with the conclusions reached by the Tribunal, essentially inviting impermissible merits review and therefore cannot succeed.[19]
[19] Minister’s Outline of Submissions filed on 28 February 2024 at paragraph [21].
For completeness, I note that ground 3 refers to the decision of the delegate. This court has no jurisdiction to review the delegate’s decision.[20]
[20] Migration Act 1958 (Cth), s 476.
In circumstances where the applicant is self-represented, I have addressed ground 3 as if it had referred to the Tribunal’s decision and not the delegate’s decision. For the reasons set out above, read in this way, ground 3 does not disclose any jurisdictional error.
Ground 4
By ground 4, the applicant asserts that the Tribunal did not properly consider the applicant’s personal circumstances and simply upheld the delegate’s decision.
This ground must fail. It is evident from the assessment of the Tribunal’s decision set out above that the Tribunal did identify and consider the applicant’s evidence and submissions. It simply did not accept them.
Moreover, fairly read, the Tribunal’s decision cannot be said to simply be an adoption of the delegate’s decision. Whilst the Tribunal noted at paragraph [8] that ‘as background to the hearing, (it) reviewed in general, the observations and commentary made by the delegate in the decision’ it went on to acknowledge that the Tribunal hearing ‘provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate’.
The Tribunal then went on to set out in some detail the applicant’s evidence given at the hearing before it, including explanations given to the Tribunal about her reasons for undertaking the courses that she had completed, their relevance to her future employment in India, the explanation for her limited return to India whilst studying in Australia, as well as her desire to ultimately return to India on the completion of her studies.[21]
[21] Tribunal decision record dated 15 August 2018 at paragraph [9] and following.
There is nothing before the court to suggest that the Tribunal did not give proper consideration to the applicant’s evidence and submissions. Ground 4 is therefore not made out.
Ground 5
By ground 5, the applicant asserts that the delegate did not consider the degree of hardship that she and her family would suffer if the visa was refused. Again, to the extent that this ground relates to the delegate’s decision, this court has no jurisdiction to deal with such a claim.[22]
[22] Migration Act 1958 (Cth), s 476.
To the extent that it is a reference to the Tribunal’s decision, it fails for two reasons.
First, the applicant has not identified any hardship that she and her family would suffer if the visa were not granted, nor does such a claim squarely arise from the material before the court.
Moreover, in the course of an exchange with the applicant after the Minister’s representative had made their submissions, the applicant stated that she and her family would not suffer any hardship if she had to return to India. She submitted that her family is there, her base is there and she has work to undertake there. It is therefore not clear how this ground is put forward, and the applicant did not clarify this in her submissions.
A failure by the Tribunal to consider a claim made, or one which squarely arises on the material, could amount to a jurisdictional error. However, in this case, the applicant has not established that the Tribunal failed to consider such a claim. No such claim was made, nor did any such claim squarely arise on the material before the Tribunal.
Ground 5 is therefore not made out.
Ground 6
By ground 6, the applicant asserts that the refusal to grant her a student visa has resulted in unfairness in circumstances where she was on the edge of completion of her skills after spending a ‘huge amount’. This ‘ground’ does no more than express a disagreement with the Tribunal’s finding and seeks impermissible merits review.
Ground 6 therefore is not made out.
CONCLUSION
For each of these reasons, the applicant’s application must be dismissed.
Having found that the applicant’s application is to be dismissed, the first respondent is entitled to an order for costs. The first respondent seeks costs fixed in the sum of $5,000. This amount is below the amount specified in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and I find it appropriate to make an order in the terms sought by the first respondent.
For each of these reasons, I make the orders set out at the commencement of these written reasons for judgment.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 12 April 2024
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