KUMAR v Minister for Immigration

[2017] FCCA 1004

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1004

Catchwords:
MIGRATION – Review of a decision of the Administrative Appeals Tribunal – where Applicant seeks merits review – application dismissed.

Legislation:

Education Services for Overseas Students Act 2000 (Cth), s.20

Migration Act 1958 (Cth), s.499

Migration Regulations 1994 (Cth), Sch.2 cl.572.223(1)(a)

Cases cited:

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration v Khanna (2016) FCA 142

Applicant: JATINDER KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1549 of 2016

Judgment of: Judge Hartnett

Hearing date: 24 March 2017

Delivered at: Melbourne

Delivered on: 24 March 2017

REPRESENTATION

The Applicant: In Person

Solicitor for the First Respondent: Ms Groves

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for judicial review filed by the Applicant on 17 June 2016 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 1549 of 2016

JATINDER KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (‘the Tribunal’), dated 20 May 2016.  By that decision, the Tribunal affirmed a decision of the delegate of the First Respondent which refused to grant the Applicant a Student (temporary) (Class TU) subclass 572 visa (‘the visa’).  The application was filed on 17 June 2016.  It was filed in the Sydney registry of the Court.  On 22 July 2016 Judge Dowdy ordered, by consent, a transfer of the proceedings to the Melbourne registry of the Court. 

2. On 31 August 2016 orders were made by consent listing the matter for final hearing on this day. The Applicant was to file and serve any amended application and written submissions.  The First Respondent was likewise to file and serve written submissions.  The Applicant filed no amended application and nor did he file any written submissions.  The First Respondent relies on the submissions filed by the First Respondent dated 25 October 2016.  The First Respondent sought by Response filed 28 June 2016 that the Applicant's application be dismissed and that the Applicant pay the First Respondent's costs of the proceedings.  

3. At the commencement of the hearing this day the Applicant sought an adjournment of the proceedings.  He sought such adjournment on the basis that he wished to obtain legal advice.  The First Respondent opposed the granting of the adjournment and the Court dismissed that application.  The Applicant has had some nine months to obtain the services of a lawyer or to obtain legal advice in respect of this proceeding.  Indeed, by correspondence of 28 June 2016, from the Australian Government Solicitor to the Applicant the Applicant was advised as follows:-

   “You are strongly urged to obtain legal advice and, if possible, legal representation in this matter. This is a complex and technical area of law requiring knowledge of the relevant provisions of the Migration Act 1958 and you may do yourself a disservice if your case is not properly considered. If you do intend to seek legal representation you should do so immediately.”

   Thereafter was the following paragraph:-

   “We enclose:

   (a) a list of agencies that may be able to assist you to obtain legal advice and/or representation; and

   (b) contact details for agencies that provide transcription and translation services should you need such services for these proceedings.”

4. The Applicant had an opportunity this day to make oral submissions to the Court. He confirmed that he had received and read the First Respondent's submissions.  He also had received the Court Book which contains evidence before the Court in the proceedings. It was filed on 27 September 2016. 

5. The Applicant submitted to the Court that he wished for the Court to let him finish his study.  He submitted that he had no intention of staying in Australia and that his mother and grandmother intended that he return home to India.  The Applicant was advised that it was not a matter for the Court on a proceeding such as this to somehow make provision for him to complete his study.  The Applicant was asked what it was that he considered wrong in the Tribunal decision of 20 May 2016.  He was not able to articulate any error in the Tribunal decision.

History

1. The Applicant is a national of India.  He arrived in Australia on 28 June 2009 on a Student (subclass 572) visa valid to 1 September 2011.  He was enrolled to study a Certificate III in Automotive Mechanical Technology and a Diploma of Automotive Management.  He did not complete the Certificate III until 2013.  He had gaps in his study for the periods 11 September 2011 to 26 March 2012 and from 20 August 2012 to 7 March 2013.  

2. The Tribunal noted in its Statement of Decision and Reasons (‘the Decision Record’) (paragraph 12) that the delegate of the First Respondent (‘the delegate’) had noted the Applicant's response to the gaps in his study included a denial of any study gaps and that he had trouble with his education provider.  The delegate was not satisfied there was any acceptable explanation for the gap in his studies for over 12 months. 

3. The delegate also noted the Applicant's claim that he had significant ties to his family in India, but observed that he had not returned home since coming to Australia in 2009. The delegate concluded, having regard to the Applicant’s lack of academic progress, his potential circumstances in Australia, and the lack of value of the courses to his future, that the Applicant was using the student visa program to circumvent permanent migration programs and, consequently, was not satisfied the Applicant was a genuine Applicant for entry and stay as a student. The delegate refused to grant the visa because the Applicant did not satisfy the requirements of cl.572.223 (1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), because he was not satisfied that the Applicant was a genuine applicant for entry and stay as a student.

4. The Tribunal, as set out in paragraph 15 of the Decision Record, also addressed the gap in the Applicant's studies, as noted in the Delegate's decision, for the period 20 August 2012 to March 2013. Material provided to the Tribunal indicated that during this period the Applicant's education provider, Menzies Institute of Technology Proprietary Limited (‘the college’), had given the Applicant a notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth) for unsatisfactory progress. The Department of Immigration and Border Protection (‘the Department’) followed up with a notice of intention to cancel his visa.

5. The Applicant had responded to the college's allegations and in February 2013 the Department determined not to cancel the Applicant's visa.  Whilst the precise nature of the circumstances surrounding this decision was unknown to the Tribunal, the Tribunal indicated in its Decision Record that it was prepared to accept the Applicant's claim that it was because of the way in which the college had treated him. 

6. The Applicant appeared before the Tribunal on 21 May 2015.  However, no decision was made on the application and the matter was reconstituted to another presiding member, with another hearing being conducted on 10 November 2015.  The Applicant appeared and gave evidence and presented arguments.  He was represented in relation to the review by his registered migration agent, who also attended the Tribunal hearing.  The Tribunal determined that the decision under review should be affirmed.

The Tribunal decision

1. The Tribunal firstly determined, having regard to the Applicant’s proposed course of study, that the relevant subclass was subclass 572. At the time of the visa application, cl.572.223 of Schedule 2 to the Regulations was an essential criterion for primary applicants for the grant of a subclass 572 visa. Clause 572.223(1)(a) relevantly stated, at the time of decision:-

   “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;

   ...”

2. Under s.499 of the Migration Act 1958 (Cth) (‘the Act’), the Tribunal noted that it was required to comply with written directions given by the Minister about the performance of functions or the exercise of powers under the Act. The Tribunal noted that it must have regard to Direction Number 53, “assessing the genuine temporary entrant criterion for student visa applications,” dated 3 November 2011. Direction Number 53 set out the factors to be taken into account in assessing whether an applicant for a student visa was a genuine temporary applicant for entry and stay as a student.

3. The Tribunal noted that the directions indicated that the factors specified should not be used as a checklist but were intended rather to guide decision-makers to weigh up the Applicant’s circumstances as a whole in reaching a finding about whether the Applicant satisfied the genuine temporary entrant criterion.

4. The Tribunal noted that the determinative issue in the proceeding before it was whether the Applicant was a genuine temporary entrant.

5. The Tribunal engaged with the Applicant during the course of the Tribunal hearing and directed itself to those matters it was required to consider under the Act, the Regulations and Direction Number 53. The Tribunal questioned the Applicant as to the gap in his studies, his academic progress, the type of courses enrolled in by him, the Applicant’s ties to India, his circumstances and ties in Australia, and about what it was he planned when he completed the course he was then undertaking. The Applicant said, in response to this last question, that upon obtaining his diploma, he would apply for temporary residence and try to get a job in the automotive field. He told the Tribunal he thought he could have a good career in Australia if given a further chance to stay. If unsuccessful in getting a job, he would return to India to look after his mother.

6. The Tribunal found that much of the evidence of the Applicant was not credible.  The Tribunal found his explanations to be unsatisfactory and inconsistent.  The Tribunal noted the Applicant maintained that he “desperately wanted to finish his diploma of automotive management” and that he would not be doing any further studies nor using the student visa program for residency purposes.  The Tribunal noted that following the hearing the Applicant provided various documents, as set out in paragraphs 24 and 25 of the Decision Record.  The Tribunal considered the totality of the evidence and concluded that the Applicant was using the student visa program primarily to maintain residence in Australia and circumvent the student visa migration program.  The Tribunal was not satisfied the Applicant genuinely intended to stay in Australia temporarily.

7. The Tribunal noted in paragraph 32 of the Decision Record that while the Applicant consistently maintained he wished to pursue a career in the automotive industry, records demonstrated that he had been enrolled in a diploma of automotive management course at least three times since 2010 and at the date of the hearing still had not commenced the course, despite being in Australia since 2009, and having first enrolled in the Diploma of Automotive Management in 2010.

8. The Tribunal also noted in relation to the value of the course to the Applicant’s future that before coming to Australia the Applicant had completed a bachelor degree.  Each course in which he had been enrolled in Australia was a regression, and he had not advanced beyond a diploma level qualification since arrival in 2009.  On the material before the Tribunal, it took over four years for the Applicant to complete his first qualification, which was at a Certificate III level, a course of 52 weeks’ duration.  The Tribunal took into account the Certificate IV in Business and the Diploma in Management completed by the Applicant over the 2013-14 academic years, but noted that these courses were also regressive in terms of academic progress, and in themselves of no clear benefit to the Applicant.  Conflicting evidence was given by the Applicant as to why he undertook these latter courses.

9. The Tribunal found that the Applicant had spent a long period in Australia, some six years, but that he had been slow to progress with his studies.

10. The Tribunal found the Applicant therefore did not meet cl.572.223 (1)(a) of the Regulations, and affirmed the delegate’s decision.

Consideration

1. The judicial review application before the Court this day has five grounds of judicial review.  They are repeated in the Applicant’s supporting affidavit filed with his application.  The first and second grounds merely restate the relevant procedural history, and make no allegation of any jurisdictional error in the Tribunal’s decision.

2. As accurately summarised by counsel for the First Respondent, the remaining grounds of review allege that:-

   a)ground three, the Tribunal failed to consider his explanation for his lack of academic progress in Australia, and in particular, how his progress was affected by different teaching techniques in Australia;

   b)ground four, the Tribunal should not have relied on the Applicant enrolling in “cheaper courses” in finding that he was not a genuine temporary entrant; and

   c)ground five, it would be “unfair” for the Applicant to have to return to India without having completed his courses.

3. None of these grounds have any merit.  Ground five contains no allegation of jurisdictional error, and the assertion that it would be “unfair” for the Applicant to return to India is nothing more than the Applicant seeking impermissible merits review.[1] 

   [1] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

4. Ground four is also without merit.  There is nowhere in the Decision Record a reference to the Tribunal taking the monetary costs of the Applicant’s courses into account to find that he was not a genuine temporary entrant.  Rather, the Tribunal referred to the value of the Applicant’s studies to him in terms of career value and academic value.   This consideration by the Tribunal was a mandatory consideration under Direction Number 53 (cl.12).

5. Ground three is also without merit.  The Tribunal considered the claims and integers of claims put before it by the Applicant and accepted, as referred to above, the Applicant’s claim that the Applicant’s college in one instance may have made matters difficult for him in terms of progressing his studies.  The Decision Record demonstrates that the Tribunal gave detailed consideration to the Applicant’s evidence about his poor academic progress in Australia and his representative’s submissions about the same.  There is no evidence of any claim by the Applicant that he needed time to adapt to the teaching style in Australia, as opposed to the difficulties he had with his education provider.

6. The Tribunal was simply not satisfied the Applicant had satisfactorily explained his lack of academic progress.  Such a lack of satisfaction was open to the Tribunal on the evidence before it. 

7. No jurisdictional error attends the Tribunal’s decision.

8. The Court accepts the Minister’s submission that there was no error in the Tribunal relying on the Applicant’s stated intention to find employment in Australia when he ceased studying in finding that the Applicant did not satisfy cl.572.223(1)(a) of the Regulations. The correct interpretation of cl.572.223 was commented upon by Logan J at paragraph 23 in Minister for Immigration v Khanna (2016) FCA 142 at [23] as follows:

   “The introductory paragraph specifies a subject of overarching satisfaction which the Minister must hold in order for a “student visa” to be granted.  That satisfaction is that the applicant is a genuine applicant for entry and stay “as a student.”  Further, the presence of the conjunction, “because,” indicates that this overarching satisfaction must be reached by reason of particular criteria specified in clause 572.223(1)(a) and (b).  By virtue of the reference to “any other relevant material” in clause 572.223(1)(a)(iv), the criteria relevant to satisfaction that an applicant “intends genuinely to stay in Australia temporarily” are limited only by relevance to the subject matter, scope, and purpose of clause 572.223.  That subject matter, scope, and purpose is to establish a class of visa to enable a person to enter and stay temporarily in Australia as a student.  This is apparent not just from the presence of the adverb “temporarily” but also from the repetition of “genuine” or a derivative both in the chapeau and in clause 572.223(1)(a) and also the adjectival clause, “as a student,” which governs “stay,” in the chapeau.” 

9. The application is dismissed and costs shall follow that event.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  18 May 2017