Kongara v Minister for Immigration
[2017] FCCA 2352
•26 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KONGARA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2352 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine student – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.362B, 499 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | ABHILASH KONGARA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 247 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 247 of 2017
| ABHILASH KONGARA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Mr Kongara, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 3 January 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Kongara a temporary student visa.
Background facts relating to Mr Kongara’s visa application and the decision of the tribunal are set out in the Minister’s legal submissions filed on 19 September this year.
Mr Kongara is a citizen of India, who arrived in Australia on 1 August 2013 on a student (Temporary) (Class TU) visa (student visa) to undertake an English for Academic Purposes Course, followed by a Master of Information Technology at Central Queensland University.
Mr Kongara completed his English for Academic Purposes course on 25 October 2013, and commenced the Master of Information Technology course on 28 October 2013. However, he was expelled from the university on 29 November 2013 for disciplinary reasons.
Mr Kongara commenced another English for Academic Purposes course on 6 January 2014, which he completed on 14 March 2014. On 24 March 2014, he commenced a Master of Information Systems at Federation University Australia. This was cancelled by the university on 31 December 2014 due to “unsatisfactory course progress”. The university had previously reported the applicant on 21 November 2014 for non-payment of fees. On 16 March 2015, Mr Kongara commenced a Master of Business Administration at Holmes Institute. This course was cancelled on 10 November 2015 due to non-payment of fees.
On 5 August 2015, Mr Kongara applied for a further student visa.[1] The course listed in his visa application was a Master of Business Administration at Holmes Institute, with course dates from 16 March 2015 to 31 July 2016.
[1] Court Book CB 1–8
The delegate refused to grant Mr Kongara a student visa on 16 December 2015 because he did not satisfy the requirements of clause 573.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[2] That clause required the delegate to be satisfied that Mr Kongara was a genuine temporary entrant.
[2] CB 30–43
Mr Kongara sought review of the delegate's decision by the Tribunal by application dated 23 December 2015.[3]
[3] CB 44–45
On 19 September 2016, the Tribunal invited Mr Kongara to a hearing on 31 October 2016.[4] The Tribunal also requested that Mr Kongara provide evidence in support of his application, including: a current Confirmation of Enrolment certificate; documents to show that he was currently enrolled in a course or had an offer of enrolment in a course; documents that showed his past studies including copies of attendance certificates and transcripts; and an explanation of any gaps in his enrolment and any documentary evidence relevant to his application.
[4] CB 89–93
On 13 October 2016, Mr Kongara responded indicating he would attend the hearing.[5] However, he did not provide any of the requested documents. On 26 October 2016, Mr Kongara's representative contacted the Tribunal and requested a postponement of one month, stating that Mr Kongara intended to return home due to a family emergency.[6] The Tribunal considered, and refused, the request.[7] On 31 October 2016 the matter was dismissed by the Tribunal pursuant to s.362B(1A)(b) of the Migration Act 1958 (Cth) (Migration Act).[8]
[5] CB 101 – 103
[6] CB 105–107
[7] CB 110–113
[8] CB 174–175
On 15 November 2016, Mr Kongara requested the matter be reinstated.[9] In support of this application, Mr Kongara provided evidence including a medical certificate in relation to his father dated 29 October 2016[10] and evidence of payment of fees dated 20 October 2016.
[9] CB 178–179
[10] CB 181
On 7 December 2016, the Tribunal decided to reinstate the matter and invited Mr Kongara to appear at hearing on 3 January 2017,[11] which he attended.[12]
[11] CB 200–203
[12] CB 211–212
The Tribunal made its decision on 3 January 2017, affirming the decision not to grant the applicant a student visa.[13]
[13] CB 222–227
Tribunal decision
The Tribunal identified that Mr Kongara needed to satisfy clause 573.223(1)(a) of Schedule 2 to the Regulations (the genuine student criterion).[14] That clause set out the following requirements which needed to be satisfied at the time of decision:[15]
[14] CB 225: [20]
[15] CB 225: [21]
(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; and
(iv) any other relevant matter; ...
In reaching a decision with respect to clause 573.223(1)(a), the Tribunal expressly acknowledged that it was required to have regard to the relevant Ministerial direction made in relation to that clause (Direction No. 53). (Direction No. 53 was given under s.499 of the Migration Act and by operation of s.499(2A) the Tribunal was required to comply with it). Direction No. 53 sets out a number of “factors” relevant to clause 573.223(1)(a)(i)–(iv), to which the Tribunal “must” have regard.[16]
[16] CB 225–226: [22]
For the following reasons, the Tribunal concluded that Mr Kongara did not satisfy the genuine temporary entrant criterion:[17]
a)Mr Kongara had been in Australia for more than three years, but had only successfully completed one three-month long English course. Further, he had not been studying for almost one year and while he claimed he had depression, he had not provided any medical evidence to substantiate this. Moreover, he had worked on a part-time basis throughout, which indicated he had come to Australia to work, not study;[18]
b)Mr Kongara’s circumstances in India were such that he had limited incentive to return there. He was not married, had no children and his father no longer had a business there. Further, Mr Kongara’s evidence that he was responsible for his own family and his father's siblings was undermined by the fact that had only travelled there once since 2013;[19]
c)Mr Kongara’s potential circumstances indicated a strong incentive to remain in Australia. Mr Kongara had worked on a part-time basis in Australia for the same employer for three years. When he returned to India in October 2016, he bought a return ticket and did not resign from his employment, which contradicted his claim that he did not initially intend to return to Australia;[20]
d)Mr Kongara’s immigration history also indicated he did not intend to stay in Australia temporarily for the purpose of study. He entered Australia in 2013 and remained until 2016, despite failing to complete his studies;[21]
e)Mr Kongara’s further attempts at study would have limited benefit to his future, given he had been unable to obtain any qualifications during the three years he had already spent in Australia;[22]
f)Mr Kongara had provided evidence that he was unable to study due to floods in India in July 2013, and his father's ill health which began in 2010. However, the Tribunal considered that if either of these factors prevented Mr Kongara from studying, he should not have remained In Australia from 2013 and pursued this application for a student visa.[23]
[17] CB 226: [24], [35]
[18] CB 225: [18]
[19] CB 226: [25]–[27]
[20] CB 226: [28]–[30]
[21] CB 226–227: [31]–[32]
[22] CB 227: [33]
[23] CB 227: [34]
The Tribunal therefore concluded that it was not satisfied that Mr Kongara intended to remain in Australia only temporarily, and therefore did not meet an essential requirement of clause 573.223.[24]
[24] CB 227: [35]–[36]
The present proceedings
These proceedings began with a show cause application filed on 25 January 2017. Mr Kongara continues to rely upon that application. There are three unparticularised grounds of review in the application:
1. Jurisdictional error and lacked jurisdiction.
2. Error in interpretation of legislation.
3. Natural Justice.
I have before me as evidence Mr Kongara’s affidavit filed with his application and the court book filed on 27 March 2017. Only the Minister prepared pre-hearing submissions in accordance with procedural orders made by a registrar.
I invited oral submissions from Mr Kongara this morning. He told me that he wanted another chance in order to prove himself. I understand this to mean that he is seeking a further opportunity to pursue his intended studies in Australia. I explained to Mr Kongara the limits on this Court’s jurisdiction. He sought more time in order to seek legal advice. I declined that request, as I consider it would be entirely fruitless.
The grounds of review advanced by Mr Kongara are meaningless in the absence of particulars. The Minister’s submissions deal with those grounds. I agree with those submissions.
Mr Kongara’s grounds of review make general assertions of error and fail to identify or articulate any jurisdictional error on the part of the Tribunal. In substance, these grounds seek impermissible merits review.[25]
[25] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–36; [1990] HCA 21; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272; [1996] HCA 6
To the extent that Mr Kongara complains that the Tribunal misapplied the legislation, the Tribunal’s decision record evidences that it engaged in an “active intellectual process” and gave “genuine” consideration to the factors set out Direction No. 53.[26] The Tribunal set out clause 573.223(1)(a),[27] stated that it had regard to Direction No. 53,[28] summarised Mr Kongara’s evidence and made findings in relation to the factors that it found to have practical relevance to Mr Kongara’s case.[29]
[26] Minister for Immigration v Khadgi (2010) 190 FCR 248; [201] FCAFC 145
[27] CB 225: [21]
[28] CB 225: [22]
[29] CB 226: [25]–[32]
The Tribunal accorded Mr Kongara procedural fairness. By letter dated 7 December 2016, Mr Kongara was invited to attend a hearing before the Tribunal which he attended with his representative on 3 January 2017. Further, it is clear that Mr Kongara was on notice that the determinative issue on review was whether he met clause 573.223(1)(a).[30]
[30] CB 223: [4]–[7], delegate's decision (CB 30–43); SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63
In accordance with the Minister’s obligations as a model litigant, the submissions raise another issue at [24]. That relates to a factual error made by the Tribunal in relation to the number of courses completed by Mr Kongara. I see no jurisdictional significance in that factual error.
The Tribunal found[31] that Mr Kongara had only completed one three month English course during his three years in Australia. It appears from both the delegate’s decision[32] and the PRISMS records[33] that Mr Kongara had in fact completed two two-month English courses, one in 2013 and one in 2014. While the Tribunal has made a wrong finding of fact, this is not a jurisdictional error.[34] The error was not material to the outcome. The Tribunal afforded Mr Kongara a hearing that was “real and meaningful”.[35]
[31] at [5], [18] and [32]
[32] at CB 41.4
[33] at CB 67
[34] Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; Abebe v Commonwealth (1999) 197 CLR 510 at [137]
[35] Minister for Immigration v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [37]; Minister for Immigration v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41 at [83]
I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,606. Mr Kongara did not wish to say anything on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of an incidental to the application fixed in the sum of $3,606.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 September 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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