KUMAR v Minister for Home Affairs
[2019] FCCA 3277
•15 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3277 |
| Catchwords: MIGRATION – Student (Temporary) (class TU) Higher Education Sector (subclass 573) – genuine temporary entrant criteria – Ministerial Direction No. 53 – application dismissed. |
| Legislation: Migration Act 1958 (Cth). Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13. Migration Regulations 1994 (Cth) cl. 573.223(1)(a) of Sch 2. |
| Cases cited: MZAJQ v Minister for Immigration and Border Protection [2015] FCCA 593 Spencer v Commonwealth [2010] HCA 28; 241 CLR 118; 84 ALJR 612; 269 ALR 233 |
| Applicant: | SHAISHANK KUMAR |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 976 of 2018 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 11 November 2019 |
| Date of Last Submission: | 11 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 15 November 2019 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the respondents: | Ms Roberts |
| Solicitors for the respondents: | Mills Oakley |
ORDERS
The applicant’s application filed 13 April 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 976 of 2018
| SHAISHANK KUMAR |
Applicant
and
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the tribunal”) on 4 April 2018. A written statement of the decision was issued on 5 June 2018.
The tribunal affirmed a decision of the delegate (“the delegate”) of the Minister for Immigration and Border Protection (“the Minister”) not to grant the applicant a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (“the visa”).
By orders made by consent on 1 May 2019, this matter was listed for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
Background
The applicant is a citizen of India and arrived in Australia on 22 May 2014.[1] He was granted a Student (Temporary) (class TU) (subclass 573) visa to enable him to undertake English language studies before commencing a Masters of Information Technology.[2]
[1] Respondent’s outline of submissions page 1 paragraph 1.
[2] Respondent’s outline of submissions page 1 paragraph 1.
The applicant conceded that he did not undertake any study in the Masters of Information Technology but rather went on to enrol in and complete a series of short courses, including a Diploma of Management, a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality.[3]
[3] Court book pages 54, 55, 93 and 94; supplementary court book page 1.
He applied for a further Student (Temporary) (class TU) (Subclass 573) visa on 29 June 2016 by reason of his enrolment in numerous courses including a Certificate IV in Commercial Cookery, a Diploma of Hospitality and a Bachelor of Business.[4]
[4] Court book pages 1 to 9 and 33 to 37.
The Department wrote to the applicant on 11 July 2016 seeking further information in support of his visa application.[5] In particular, the Department requested further information in relation to the applicant’s satisfaction of the criterion under clause 573.223(1)(a) of schedule 2 to the Migration Regulations 1994 (Cth) (“the genuine temporary entrant criterion”).[6]
[5] Court book pages 56 to 61.
[6] Court book page 60.
In that letter, the Department noted it had concerns the applicant “may be using the student visa as a means of maintaining de facto residence” and requested that the applicant “address these concerns”.[7]
[7] Court book page 60.
On 2 August 2016, the applicant provided a genuine temporary entrant statement in response to the Department’s request.[8]
[8] Court book pages 78 and 79.
Later that year on 1 December 2016, the delegate refused to grant the visa on the basis that the applicant failed to satisfy the genuine temporary entrant criterion.[9] In essence, the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student as she was not satisfied the applicant intended to genuinely stay in Australia temporarily.[10]
[9] Court book pages 87 to 96.
[10] Court book page 95.
The tribunal’s reasons
On 6 December 2016 the applicant applied to the tribunal for a review of the delegate’s decision.[11]
[11] Court book pages 97 and 98.
By letter dated 6 March 2018, the applicant was invited to a hearing before the tribunal on 4 April 2018 to give evidence and present arguments in support of his application.[12] A copy of Ministerial Direction No. 53 was attached to the letter which was noted as being relevant to the consideration of the applicant’s application.[13] The invitation also requested that the applicant provide further documents evidencing his enrolment status.[14]
[12] Court book pages 110 to 114.
[13] Court book pages 113 and 119 to 123.
[14] Court book page 113.
The applicant’s representative submitted a number of documents to the tribunal on the applicant’s behalf by email on 31 March 2018.[15] This included what asppears to be a business plan for a restaurant.
[15] Court book pages 124 to 182.
The applicant and his representative appeared before the tribunal on 4 April 2018 at which time the tribunal gave oral reasons for its decision at the conclusion of the hearing.[16] Written reasons were provided to the applicant by email dated 6 June 2018.[17]
[16] Court book pages 184 to 186.
[17] Court book pages 195 to 204.
The tribunal noted in its decision record that:
a)it had discussed with the applicant the various factors set out in Ministerial Direction No. 53;[18]
b)the applicant was represented in the review process and at the hearing;[19]
c)there was no evidence produced regarding a number of matters referred to in Ministerial Direction No. 53 and the tribunal made no findings in relation to those matters; namely, potential military service in India, economic or political circumstances in India, civil unrest and the like;[20]
d)the applicant completed an English language course between 26 May 2014 and 27 June 2014;[21]
e)whilst the applicant had initially come to Australia to study a Masters of Information Technology, he did not commence that course as he had not received the necessary results in his English language course to permit him to continue with that degree;[22]
f)subsequently, the applicant completed a series of courses which I have referred to above;[23]
g)prior to coming to Australia, the applicant completed secondary school, a Bachelor of Arts degree and courses in information technology in India;[24]
h)as part of his Bachelor of Arts degree, the applicant had undertaken both business and economics studies;[25] and
i)the applicant completed a Diploma of Management in Australia.[26]
[18] Court book page 199 at paragraph 7.
[19] Court book page 199 at paragraph 7.
[20] Court book page 199 at paragraph 7.
[21] Court book page 199 at paragraph 8.
[22] Court book page 199 at paragraph 9.
[23] Court book page 200 at paragraph 11.
[24] Court book page 200 at paragraph 13.
[25] Court book page 200 at paragraph 14.
[26] Court book page 200 at paragraph 16.
In response to an enquiry regarding the applicant’s future plans, the tribunal noted the applicant responded that he wanted to return to India to open a restaurant.[27] He also advised the tribunal that his parents were going to provide him with land and property from which to operate the restaurant.[28]
[27] Court book page 201 at paragraph 20.
[28] Court book page 201 at paragraph 20.
The tribunal also had regard to a business plan provided by the applicant which was long but fairly generic.[29] Notwithstanding that, the tribunal engaged with the applicant regarding his stated intention of returning to India to operate a restaurant.[30] The tribunal also had regard to written information provided by the applicant in his personal statement.[31]
[29] Court book page 201 at paragraph 21.
[30] Court book page 201 at paragraph 21.
[31] Court book page 201 at paragraph 22.
The tribunal accepted the applicant may have had some pressure from his family to pursue business or management courses rather than cookery courses.[32] However, the tribunal relevantly noted:
What the Tribunal is concerned about however, and which I will elaborate further on in a moment, is that you were unable to provide any explanation to the contrary when it was suggested to you that you already have the skills and qualifications necessary for you to pursue your stated overseas restaurant plan. The Tribunal considers that if your future intention really is to open a restaurant business back in India then, with the bachelor degree that you already have from India combined with your Certificate III in Commercial Cookery and your Certificate VI in Commercial Cookery, … combined with your Diploma of Hospitality and your Diploma of Management the Tribunal considers that you already have the skills necessary.[33]
[32] Court book page 201 at paragraph 25.
[33] Court book page 201 at paragraph 26.
The tribunal added that it was:
not convinced that you need a second bachelor degree in order to pursue this plan. You have not put before the Tribunal any evidence to satisfy the Tribunal that a second bachelor degree is needed in order to operate a restaurant in India.[34]
[34] Court book page 202 at paragraph 27.
It then considered the applicant’s personal ties in India and his position here in Australia.[35]
[35] Court book page 202 at paragraphs 28 to 33.
The tribunal noted ‘the course proposed is at the same level of the course you have already completed’[36] and went on to say that it:
considers that (the applicant’s) own conduct in proposing further study at this time when (he) quite simply already have the skills that (he) needs to pursue (his) stated plan is simply evidence of (his) intention to remain in Australia as long as (he) can.[37]
[36] Court book page 203 at paragraph 35.
[37] Court book page 203 at paragraph 39.
Having regard to these conclusions and to the contents of Ministerial Direction No. 53, the tribunal concluded little weight should be given to the applicant’s claimed incentives to leave Australia.[38] On the basis of these matters, it was not satisfied that the applicant intended to stay in Australia temporarily and therefore did not satisfy the genuine temporary entrant criterion.[39]
[38] Court book page 203 at paragraphs 43.
[39] Court book page 203 at paragraphs 43 and 44.
The tribunal therefore affirmed the delegate’s decision to refuse to grant the applicant the visa.[40]
[40] Court book page 204 at paragraph 45.
Proceedings before this court
The application filed in this court on 13 April 2018 raised the following three grounds of review:
a)“Delegated member did not review the documents”[41] (“ground one”);
b)“I hold genuine intention to complete studies and want to work in my home country” [42] (“ground two”); and
c)“I seek review into relevance between my past study, future plans and my research into my future proposed study plan as well based on surfing about current trends in Indian Industry” (sic)[43] (“ground three”).
[41] Applicant’s application page 3.
[42] Applicant’s application page 3.
[43] Applicant’s application page 3.
As stated above, orders were made by consent on 1 May 2019 which listed the application for a show cause hearing on 11 November 2019 pursuant to rule 44.12 of the Rules and permitted the applicant to file and serve any amended application with proper particulars of the grounds and written submissions 28 days prior to the hearing.
Notwithstanding these orders, the applicant did not file any amended application, nor did he better particularise his application or file any written submissions.
Rule 44.13 of the Rules relevantly provides:
(1)At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.
The applicant represented himself in the proceedings before this court. At the commencement of the proceedings, I explained to the applicant this was a show cause hearing and that if the applicant did not satisfy the court his application had raised an arguable case, the court had the power to dismiss the application.
Rule 44.12 of the Rules relevantly provides:
(1)At a hearing of an application for an order to show cause, the Court may:
(a)If it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or
(b)If it is satisfied that the application has raised an arguable case for the relief claimed – adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c)Without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
At the hearing, the applicant was invited to make further submissions in support of the grounds of review. In summary, the applicant’s oral submissions addressed the following points:
a)at the tribunal hearing, when the applicant was asked why he wanted to do another degree when he had already obtained a degree in India, he explained that the degree he had undertaken in India was only a basic degree, but the tribunal member did not ‘get what he was saying’;
b)in response to the tribunal member’s enquiries about his friends, he said he had been studying in Australia and had come to know some of his class mates living here, but he did not have any family in Australia;
c)in response to the tribunal member’s query as to how the applicant knew that he would leave the country, the applicant provided a copy of the ‘project report’ to the tribunal and advised that he and his parents had discussed it; and
d)the applicant stated he tried to explain his own points in support of his application but the tribunal member did not get what he was trying to say.
Ground one
The first ground of review is that the ‘delegated member did not review the documentation’.[44]
[44] Applicant’s application filed 13 April 2018 on page 3.
When asked what he meant by this ground of review, the applicant said the documentation he was referring to was the business plan that he had prepared for starting up a restaurant in India.
It was submitted on behalf of the first respondent that it was factually inaccurate that the tribunal failed to consider the applicant’s business plan. The tribunal member specifically referred to the business plan in the tribunal’s reasons and expressly stated she had regard to the business plan.[45] The tribunal member then went on to consider the business plan in more detail in paragraph 21.[46]
[45] Court book page 201 at paragraph 20.
[46] Court book page 201.
In response to my request that the applicant explain the error he believed was made by the tribunal, he stated the tribunal did not distinguish between the degree he had completed in India and the degree he wanted to complete in Australia. He acknowledged that he had completed a Bachelor degree in India, but said it was not a Bachelor of Business degree.
In this regard, it was submitted on behalf of the Minister that it was also factually inaccurate that the tribunal failed to understand the applicant’s submission that there was a difference between the Bachelor degree he obtained in India and the Bachelor degree he wanted to undertake in Australia.
In its reasons, the tribunal noted the applicant’s assertion that the degree undertaken by the applicant in India was a ‘generalist undergraduate degree’ and a ‘basic level degree’.[47] However, the tribunal further noted the applicant conceded he studied both business and economics as part of that degree and went on to consider the applicant’s educational history both in Australia and in India.[48]
[47] Court book page 200 at paragraph 14.
[48] Court book page 200 at paragraphs 14 to 19.
Further, the tribunal made express reference in its reasons to the submissions made by the applicant in his genuine temporary entrant statement.[49]
[49] Court book page 200 at paragraph 18.
Ultimately, the tribunal was not satisfied that the applicant needed an additional bachelor’s degree to open a restaurant in India.[50]
[50] Court book page 201 at paragraph 26.
It was submitted on behalf of the Minister that in any event, ground one did not properly identify the error that the tribunal was alleged to have made.[51]
[51] Respondent’s outline of submissions filed 25 October 2019 page 5 at paragraph 23.
I agree with the submissions made by the Minister that to the extent that this ground relies upon the submission that the tribunal member failed to properly consider the business case submitted by the applicant or that the tribunal member failed to give proper consideration to the difference between the degree obtained by the applicant in India and the degree he wanted to undertake in Australia, this ground is not made out.
It is clear from a fair reading of the tribunal’s reasons that it did consider the business plan and also accepted that the applicant maintained there was a difference between the degree he had obtained in India and the business degree he wanted to undertake in Australia.
I therefore find that ground one does not disclose an arguable case of jurisdictional error.
Ground two
The applicant’s second ground of review is “I hold genuine intention to complete studies and want to work in my home country.”[52]
[52] Applicant’s application filed 13 April 2018 on page 3.
When asked to explain what he meant by this ground, the applicant said when he initially came to Australia, he had to complete his English language course but was not able to enrol in the main course because he didn’t achieve the required level in his English course. It was for this reason that he changed courses. He said he was a genuine student and was not simply wanting to spend more time in Australia.
It was submitted by the Minister that to the extent the applicant seeks to convince this court of his genuine intention to return to India after he completed his studies here, he is seeking impermissible merits review.[53]
[53] Respondent’s outline of submissions filed 25 October 2019 page 5 at paragraph 24.
I agree that ground two does little more than invite this court to undertake impermissible merits review. Thus, ground two does not raise an arguable case of jurisdictional error.
Ground three
The applicant’s third ground of review is:
I seek review into relevance between my past study, future plans and my research into my future proposed study plan as well based on surfing about current trends in Indian Industry (sic).[54]
[54] Applicant’s application filed 13 April 2018 on page 3.
When asked to explain this ground, the applicant said that his future plan was that once he completed his Bachelor of Business, he intended to return to India and open a restaurant there.
I asked the applicant whether it was his submission that he was not given an opportunity to explain this. The applicant said that he tried to explain this to the tribunal member but the tribunal member ‘did not get this’.
When asked to clarify whether he meant the tribunal member did not understand what the applicant was saying or whether he meant the tribunal member did not accept what the applicant was saying, the applicant said he didn’t know, other than that he tried to explain it many times but the tribunal member did not ‘get’ what he was saying.
It was submitted for the Minister that the tribunal did not make a factual finding as to whether or not the applicant intended to open a restaurant in India. Rather, the tribunal found that if he wished to do so, he had obtained the necessary training and there was no evidence that he required a further business degree from an Australian university to do so.[55]
[55] Respondent’s outline of submissions filed 25 October 2019 page 5 at paragraph 25.
It is clear from the tribunal’s reasons that it considered the evidence before it and formed a view on the basis of that evidence about whether the applicant met the genuine temporary entrant criteria.
Ground three, like ground two, simply invites the court to engage in impermissible merits review and does not raise an arguable case of jurisdictional error.
Considerations and conclusion
As noted by Judge Whelan in MZAJQ v Minister for Immigration and Border Protection [2015] FCCA 593 and Judge Smith in SZUTB v Minister for Immigration and Border Protection and Anor [2015] FCCA 1383 (“SZUTB”), the court’s power under rule 44.12(1)(a) of the Rules is in the form of summary dismissal and ought to be exercised with caution.[56]
[56] MZAJQ v Minister for Immigration and Border Protection [2015] FCCA 593 at [13]; SZUTB v Minister for Immigration and Border Protection and Anor [2015] FCCA 1383 at [10].
As noted by French CJ and Gummow J in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118; 84 ALJR 612; 269 ALR 233:
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. …
More recently in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following …:
…Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way (emphasis added).[57]
[57] Spencer v Commonwealth [2010] HCA 28; 241 CLR 118; 84 ALJR 612; 269 ALR 233 at [24], [57].
Even where the court is satisfied that there is no arguable case, it still must consider whether to exercise its discretion as to whether or not to dismiss the application.[58]
[58] Siddique v Minister for Immigration and Border Protection [2014] FCA 1352; 144 ALD 328 at [19].
In considering whether to exercise the court’s discretion to dismiss the application, I have had regard to the fact that:
a)although the applicant represented himself before this court, he was given the opportunity to amend his application and file written submissions, but chose not to do so; and
b)as noted in SZUTB:
…the objects of the [Federal Circuit Court Rules] include that they are to help the Court to use streamlined processes and that the parties must, in order to assist the Court, avoid undue delay, expense and technicality [and]… this Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.[59]
[59] SZUTB v Minister for Immigration and Border Protection and Anor [2015] FCCA 1383 at [18].
These factors, together with the findings I have made regarding the absence of an arguable case arising from the applicant’s grounds of review, lead me to conclude that it is appropriate in this case to exercise the court’s discretion and dismiss the applicant’s application.
I therefore order that the applicant’s application ought to be dismissed pursuant to rule 44.12(1)(a) of the Rules and that the applicant pay the first respondent’s costs in a sum to be fixed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 15 November 2019
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