KRITSAS v Minister for Immigration

[2016] FCCA 758

FEDERAL CIRCUIT COURT OF AUSTRALIA

KRITSAS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 758

Catchwords:
MIGRATION – Judicial review of determination not to grant student visa – tribunal not satisfied that the applicant genuinely intended to stay in Australia temporarily.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:
Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971

Applicant: SPYRIDON KRITSAS

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 347 of 2015

Judgment of: Judge McGuire

Hearing date: 5 April 2016

Date of Last Submission: 5 April 2016

Delivered at: Melbourne

Delivered on: 25 May 2016

REPRESENTATION

Solicitors for the Applicant: Self Represented

Counsel for the First Respondent: Mr Gunyringhame

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the application for judicial review be dismissed.

2. That the applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 347 of 2015

SPYRIDON KRITSAS

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a judicial review of a decision of the Migration Review Tribunal (as it then was) (“the tribunal”) made 29 January 2015 affirming a determination of the Minister’s delegate to refuse the applicant a Student (Temporary) (Class TU) visa (“the visa”). 

2. The applicant represents himself before this court but with the assistance of an interpreter. The application sets out the following grounds:

   (1)  Errors were made during the hearing.  Facts were wrongly stated and then documented on the decision record.

   (2) Errors were made in the MRT decision record and said differently from the hearing.

   (3) Errors were made by the interpreter.

   (4) Questioning was underpinned with bias of the applicant’s circumstances and judgements made based on these.

   (5) All grounds are explained in the affidavit attached.

3. The applicant swore an affidavit on 23 February 2015 expanding and particularising the grounds of complaint set out above. 

4. Whilst the applicant did not comply with the procedural orders to file and serve written submissions, he did provide further documents including corrections to his previous affidavit at the hearing before this court.  Instructions were taken by counsel for the Minister and the late further written submissions were accepted.

5. The applicant was offered the opportunity to make oral submissions but declined.  He did however choose, with the assistance of the interpreter, to make some submissions in response to those of counsel for the first respondent. Those submissions, however, can fairly be described as comprising a simple narrative and cavils only with the merits of the tribunal’s decision.

Background

1. The applicant is from Greece.  He arrived in Australia in September 2011 and was granted a Subclass 570 visa to expire 15 March 2014.  He applied for the relevant visa on 11 March 2014. 

2. It is uncontroversial that the applicant has been compliant with his various visa requirements.

3. The applicant enrolled in the Institute of Tertiary and Higher Education, Australia (ITHEA) in various certificates I‑IV in English as a second language (ESL) evidenced by a letter from the education institution, dated 16 April 2014 (CB21).  The applicant says that he did not successfully complete the certificate IV.

4. The applicant’s claim included that his mother remains resident in Greece and that he is an only son.  He says that his intention is to remain in Australia only temporarily and for the purposes of obtaining English language qualifications and so as to gain competence in English with an intention of pursuing international studies and a hospitality course and/or so as to pursue a career in the hospitality industry in Greece.

5. The issue for the tribunal was whether the applicant met the criterion in clause CL570.223(1)(a) of Schedule 2 of the Migration Regulations 1994 (Cth). That clause states:

   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;

   (iv)any other relevant matter.

6. In its reasons at [8] the tribunal correctly identified that it should have regard to Direction no. 53 made under S499 of the Migration Act (“the Act”) requiring the tribunal to reference to the following:

   (i)The applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   (ii)The applicant’s immigration history, including previous applications for an Australian visa or visas to other countries, and previous travel to Australia or other countries;

   (iii)If the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant;  and

   (iv)Any other relevant information provided by the applicant, or information otherwise available to the decision‑maker, including information that may be either beneficial or unfavourable to the applicant.

7. The above are to be considered simply as guidelines and not than an exhaustive checklist. 

The tribunal’s decision

1. The applicant appeared before the tribunal on 28 January 2015 with the assistance of an interpreter.

2. At [13] the tribunal considered the applicant’s proposed course of study and with reference to the value of the course to his future.  The tribunal says:

   The tribunal has regard to Ministerial Direction no. 53 and it is not satisfied that the applicant’s proposed course of study is consistent with his current level of education and will assist him to obtain employment or improve his employment prospects in his home country. 

3. The applicant told the tribunal that he had previously, up until 2004, owned a restaurant in Athens but the bank had repossessed it.  He said he worked in restaurants from 2005 until he came to Australia in 2011.  He said he currently had a place in Kalabaka which was closed. However, he wanted to set up a restaurant there as it was a thriving tourist location with three million visitors per annum, two million of whom are foreign. He told the tribunal that the translated letter he had submitted from the Aigineion Restaurant in Kalabaka offering him employment was not his first preference and that he wanted to open his restaurant in 2016.

4. At [14] the tribunal found that it was not satisfied with the applicant’s explanation as to why he was again studying equivalent English courses and found that he had completed equivalent English language courses up to certificate IV level, therefore having no need to repeat.

5. Also at [14] the tribunal noted that the applicant had not provided evidence to substantiate his intended rationale for such studies and in fact, the applicant had provided a letter offering him restaurant work in Greece despite his claims that English language was a necessary requirement for such work.

6. At [15] the tribunal considered the evidence in respect of the applicant’s circumstances in his home country.  The reasons state:

   The tribunal has taken into account that the applicant has an ongoing offer of work from a restaurant in Greece but finds this to be only a limited incentive for him to return, particularly in light of his claim that he wishes to establish his own restaurant.

7. Whilst the tribunal was willing to accept that the applicant has a property that could be used in the future as a restaurant on his evidence at the hearing, this is not currently open and the tribunal gives little weight to this factor.

8. And at [16] the tribunal says:

   The tribunal has taken into account that the applicant has an elderly mother in Greece and that this is a possible incentive to return to his home country.

9. However, he told the tribunal that he had not returned to Greece since coming to Australia because he did not find travel easy and did not like being stuck in the same position.  The tribunal accepted that economy air travel on long flights is uncomfortable but his failure to return home to visit his mother in over three years leaves it to give very little weight to this factor as being a substantial incentive to return.  Indeed it notes that the applicant has stated that his mother is his only living relative and that he has no other family and this would indicate that he did not have a significant incentive to return.

10. At [17] the tribunal considered the applicant’s immigration history and other relevant matters. The tribunal’s reasons at [17] favourably take into account that the applicant had complied with his previous visa conditions and had successfully completed certificates I to IV (despite the applicant’s claim now to this court that he did not successfully complete the certificate IV).

11. The tribunal at [17] also sets out its conclusions in respect of its exercise of discretion and says that despite findings favourable to the applicant, “…however, the tribunal finds in all the circumstances that he is using the student visa programme to maintain ongoing residence”.  And at [18] the tribunal concludes:

    On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

12. Accordingly, the applicant does not meet CL570.223(1)(a).

Application to this court

1. The grounds of the applicant’s complaint as set out in his application are particularised in his affidavit and considered under the following headings. Although predominantly comprising narrative, I will deal with the applicant’s various complaints by reference to the paragraphs of his affidavit.

Certificate IV – ESL course

1. The tribunal’s reasons at [10] and [14] refer to the applicant’s successful completion of the certificate IV ESL course.  The applicant says that this is an error of fact. Importantly, it was the applicant himself who submitted the letter from ITHEA dated 16 April 2014 which states:

   This is to confirm the following student’s completion in certificates in ESL at ITHEA – Institute of Tertiary and Higher Education Australia.

   Certificate/diploma details:

   Course Code:  21940

   Course Title:  Certificate IV in ESL (further study). 

   Start date:  17.06.2013. 

   Expected date of completion:  12.12.2013.

2. I can only presume that the applicant familiarised himself with the contents of the letter that he himself relied upon.  Notably, the applicant did not provide any contrary evidence to the tribunal.  In all of those circumstances, the tribunal made a finding which was, in my view, the only one open to it on the evidence before it and significantly on evidence provided by the applicant himself.  Consequently, I find no merit in this ground of complaint.

Enrolment in certificate II EAL

1. The applicant complains that the tribunal in its reasons refers to him enrolling in certificates II to IV level.  He says that this is a factual error and that he did not enrol in certificate II in EAL.  However, a close reading of the tribunal’s reasons at [11] discloses:

   The applicant enrolled again in ITHEA in the following courses:

   Certificate III in EAL (Access) on 13 March 2014 to 22 August 2014;

   Certificate III in EAL (Further Study) from 25 August 2014 to 6 March 2015;

   Certificate IV in EAL (Further Study) from 9 March 2015 to 21 August 2015.

2. Consequently, if indeed the tribunal mentioned, during the hearing, words to the effect of “…enrolment in Certificate II to IV level…” then such is not material to its decision as the reasons at [11] are in accord with the applicant’s factual history as to his enrolments. No jurisdictional error based on mistake of fact is therefore apparent.

3. Ground 2 of the application particularised in the affidavit also sets out a narrative as to the applicant’s motivation for his set of enrolments.  He argues that he was “discriminated against for wanting to repeat a course I didn’t achieve in”.  This is an attempt to cavil with the merits of the tribunal’s determination and it is trite to say that it is not the role of this court to yet again consider the merits of the visa application.

4. I find no merit in the second ground of the complaint.

5. The applicant at ground 3 complains that the tribunal member had stated during the course of the hearing “you have successfully completed courses in Certificates I to IV successfully”.  The applicant repeats under this ground that he did not complete a Certificate IV in EAL at all and was “NOT enrolled in it”.  He continues that he did not complete a Certificate III in EAL and did not receive a certificate from ITHEA.

6. These matters have been dealt with under Ground 1 above and I find no merit in Ground 3 of the application.

7. Grounds 4 and 5 of the affidavit particularising the complaint both deal with the tribunal’s finding as to the applicant’s failure to return to Greece.

8. The tribunal was appraised of the facts in that the applicant has not travelled to see his mother for some three years and that he claims not to find aeroplane travel to be easy.  This was the relevant information before the tribunal.  The applicant had the opportunity to put further relevant facts or information before the tribunal.  The allocation of weight to the evidence is a matter for the tribunal and the conclusions it reached were reasonably open to it on the evidence.  There is, therefore, no merit to these grounds of complaint.

Error in interpreting the word “Meteora”

1. The applicant argues that his interpreter before the tribunal referred to Meteora as a “meteorite” rather than the town in Greece in which the applicant had lived.  If, indeed, this was the case, then nothing arises that could point to an error in the tribunal’s process of determination in the sense of moving to a finding from a mistake of fact.  Significantly at [15] the tribunal relevantly noted that the applicant “has an ongoing offer of work from a restaurant in Greece but finds this to be only a limited incentive for him to return, particularly in light of his claim that he wishes to establish his own restaurant”.  And at [13]:

   The applicant told the tribunal that he had previously, up until around 2004, owned a restaurant in Athens but the bank had repossessed it.  He said he worked in restaurants from 2005 until he came to Australia in 2011.  He said he currently had a big place in Kalabaka but it was closed but he wanted to set up a restaurant there as it was a big tourist place with three million visitors, two million of them foreign.  He told the tribunal that the translated letter he had submitted from Aigineion Restaurant in Kalabaka offering him employment was not his first preference and he wanted to open his restaurant in 2016.

2. Consequently, if there was any error in interpretation then I am not satisfied that it affected the tribunal’s determination and no error is made out.

Error in describing the applicant’s employment history

1. At [13] the applicant says the tribunal attributed a fact to him being that he had “up until around 2004 owned a restaurant in Athens but the bank repossessed it”.

2. In his affidavit under this heading, the applicant himself questions the relevance of that alleged mistake and historical fact.  In the sense of specific particulars, I agree with the applicant.  It was the applicant’s employment in the hospitality industry which was relevant to the tribunal’s consideration in the context of his proposed courses and his employment prospects.  I am not satisfied that any jurisdictional error arises from an alleged mistake of fact leading to the tribunals conclusions.

Bias

1. The applicant claims:

   I feel that even though the MRT gave me an opportunity to be heard, it subjected me to their bias and assumptions, similarly to the department’s decision to refuse me a further student visa.  This process is not about me telling the truth that I have sworn to but for the tribunal to uphold the assumptions of the department’s decision.  The process was insulting, belittling and prejudicial.

2. There is a well-established onus on an applicant asserting actual or perceived bias.  The applicant here does not discharge that onus in that he makes only generalised statements.  His claims are not established and there is no merit to this ground.

Khanna & Ors v Minister for Immigration &Anor [2015] FCCA 1971

1. The applicant in his further written submissions handed to the court on the day of the hearing included without comment a copy of the judgment of my colleague Judge Manousaridis dated 20 July 2015.  I am aware that his Honour’s reasons address the issue of whether an applicant for a student visa intends to genuinely stay in Australia only temporarily.  Whilst that is an issue before me, the applicant did not attempt to either adopt or distinguish his factual platform to that before his Honour. If the purpose of providing me with a copy of his Honour’s judgment was to refer me to the relative legal principles then I am grateful but note, in any event, that his Honour’s judgment was the subject of a successful appeal.

Conclusion

1. Given that I have found no merits in any of the grounds of complaint made by the applicant, the application will be dismissed with an order for costs.

I certify that the preceding forty-thee (43) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 25 May 2016