KOURO v Minister for Home Affairs

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FEDERAL CIRCUIT COURT OF AUSTRALIA

KOURO v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 911
Catchwords:
MIGRATION – Application for a Student (Subclass 500) Visa – finding that application was not made in circumstances where the applicant intended genuinely to stay in Australia temporarily – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359(2), 499
Migration Regulations 1994 (Cth), Schedule.2, cl.500.212

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Wickramasinghe v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 30
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: GKERGKI KOURO
First Respondent: MINISTER FOR HOME AFFAIRS
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: MLG 2494 of 2018
Judgment of: Judge Egan
Hearing date: 20 April 2020
Date of Last Submission: 20 April 2020
Delivered at: Brisbane
Delivered on: 23 April 2020

REPRESENTATION

Counsel for the Applicant: Mr Maloney
Solicitors for the Applicant: Clothier Anderson
Counsel for the First Respondent: Mr Reilly
Solicitors for the First Respondent: Mills Oakley
Second Respondent Submitting appearance save as to costs

ORDERS

  1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

  2. The Amended Application for review filed on 9 April 2020 be dismissed.

  3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 2494 of 2018

GKERGKI KOURO

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. The applicant is a male citizen of Greece who arrived in Australia on 29 April 2016 pursuant to a 3 month Temporary Entrant Visa.

  2. On 28 July 2016, the applicant applied for a Student (Subclass 500) Visa.

  3. On 13 July 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

  4. On 27 January 2017, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.

  5. On 12 April 2018, the Tribunal invited the applicant to provide information about his proposed course of study pursuant to the provisions of s.359(2) of the Migration Act 1958 (Cth) (‘the Act’) which empowered the Tribunal to invite, either orally (including by telephone) or in writing, a person to give information. [1] That letter sought a reply by 26 April 2018. By an email sent to the Department by the applicant’s migration agent on 26 April 2018, the agent replied as follows:

    “I have spoken with the client above and I have been advised that he does not want to attend…

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Details
Case
[2020] FCCA 911
Decision Date

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the refusal of a Student (Subclass 500) Visa. The applicant, Kouro, sought to challenge the AAT's finding that the application was not made in circumstances where the applicant intended genuinely to stay in Australia temporarily.

The primary legal issue before the court was whether the AAT had committed a jurisdictional error in its assessment of the applicant's genuine temporary entrant (GTE) criterion. This involved considering whether the AAT had properly applied Ministerial Direction No. 69, which provides guidance on factors to be considered when assessing an applicant's immigration history, including previous visa applications and travel history.

The court noted that the AAT had regard to Direction No. 69, specifically clauses 13 and 14, which outline factors such as previous visa refusals, compliance with visa conditions, and the pattern of time spent in Australia. However, the AAT correctly understood that these factors were not to be treated as a checklist but rather as guidance for a holistic assessment of the applicant's circumstances. The Tribunal independently reviewed the delegate's decision and considered the information provided by the applicant in response to a section 359(2) invitation.

The court found no jurisdictional error in the AAT's decision. The Tribunal had applied the relevant legal principles and considered the evidence before it in reaching its conclusion that the applicant had not satisfied the GTE criterion. Accordingly, the application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

At [8] of its reasons, the Tribunal noted that in considering whether or not the applicant satisfied the cl.500.212(a) criteria, the Tribunal was to have regard to Ministerial Direction No.69 (‘Direction No.69’) made pursuant to the provisions of s.499 of the Act. Clauses 13 and 14 of Direction No.69 relevantly provided as follows:“The applicant's immigration history13. An applicant’s immigration history refers both to their visa and travel history.14. When considering the applicant’s immigration history, decision makers should have regard to the following factors:a. Previous visa applications for Australia or other countries, including:i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; andii. if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.b. Previous travels to Australia or other countries, including:i. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;ii. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;iii. the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; andiv. if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance.” At [9] of its reasons, the Tribunal noted that the relevant factors specified in Direction No.69 should not be used as a checklist, but were rather intended for guidance to decision makers when considering the applicant’s circumstances as a whole in relation to whether the genuine temporary entrant criterion had been satisfied or not. At [10] of its reasons, the Tribunal recorded that it had reviewed the decision of the delegate, and it noted that the decision was not binding on the Tribunal. The Tribunal stated that it brought an independent view to the review application. At [11] of its reasons, it was recorded that the applicant had responded to the invitation to provide information pursuant to s.359(2) of the Act. Of the two responses received on behalf of the applicant, the first response consented to the Tribunal deciding the review without a hearing. The second response recorded that the applicant had a current confirmation of enrolment in a course of study.