Kumar v Minister for Immigration

[2016] FCCA 2801

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2801

Catchwords:
MIGRATION – Administrative Appeals Tribunal – whether the Tribunal erred in applying cl.572.223 of sch.2 to the Regulations in assessing whether the applicant genuinely intended to stay in Australia temporarily – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – application for an adjournment – whether an adjournment was in the interests of the administration of justice – application refused.

Legislation:

Migration Act 1958 (Cth), s.476.

Migration Regulations 1994 (Cth), cl.572.223 of sch.2.

Applicant: SUNIL KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1687 of 2016

Judgment of: Judge Street

Hearing date: 31 October 2016

Date of Last Submission: 31 October 2016

Delivered at: Sydney

Delivered on: 31 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms S Given

HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant to pay the costs of the First Respondent fixed in the amount of $5,600.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1687 of 2016

SUNIL KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 June 2016 affirming a decision of the delegate not to grant the application a Student (Temporary) (Class TU) visa. The applicant is a citizen of India who was granted a Student visa (TU573) (offshore) on 19 June 2007, which was valid until 25 November 2009.

2. The applicant arrived in Australia on 19 July 2007. Since that date, over the nine-year period, the applicant has finished seven particular courses and had cancelled approximately 22 courses.

The Delegate’s Decision

1. The delegate identified in the decision dated 13 October 2015 that the relevant criterion was set out in cl.572.223(1)(a) of sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”). Relevantly, part of that criterion required the applicant to satisfy the Minister that the applicant intends genuinely to stay in Australia temporarily. After weighing various evidence, the delegate was not satisfied that the applicant genuinely intends a temporary stay in Australia. The delegate found that the applicant had not satisfied the Minister that the applicant was a genuine temporary applicant for entry and stay as a student because the delegate was not satisfied that the applicant intends to genuinely stay in Australia temporarily, having regard to his circumstances, his migration history, and other matters before the delegate.

The Tribunal Decision

1. On 26 October 2015, the applicant applied for review. By letter dated 27 October 2015, the Tribunal acknowledged receipt of the application for review and invited the applicant to provide material and written arguments in relation to the application. On 17 May 2016, the applicant was sent a letter inviting the applicant to appear before the Tribunal on 20 June 2016. The covering letter invited the applicant to provide all documents the applicant intended to rely upon to establish that the applicant met the criteria for the visa. The letter specifically identified the need for the applicant to provide information, as follows:

   (1) A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa;

   (2) Documents that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa;

   (3) Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing work related to past or intended studies in Australia.

   (4) An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.

2. The letter expressly identified that the Tribunal will:-

   “Assess whether you intend genuinely to stay in Australia temporarily as required by clause 572.223(1)(a) of the Migration Regulations.”

3. Enclosed with the letter was Ministerial Direction No. 53 expressly referring to “assessing the genuine temporary entrant criterion for Student visa applications.”

4. The applicant attended the hearing on 20 June 2016 to give evidence and present arguments. The Tribunal identified the criteria for the grant of the relevant visa under cl.572.223(1)(a) of sch.2 to the Regulations as well as the guidance required under Ministerial Direction No. 53. The Tribunal noted that the applicant, having attended to give evidence and present arguments, was actually represented by a registered migration agent, although the agent did not attend the hearing.

5. The Tribunal noted that during the hearing the applicant did indicate that he wanted to remain in Australia permanently, but also repeated that he wanted to study. The Tribunal referred to the very limited progress the applicant had made in his nine years in Australia on a student visa, the primary purpose of which was for the applicant to study and be able to return to his home country with the benefit of that study. The Tribunal noted that the applicant was not currently studying or the subject of an offer of enrolment. The Tribunal referred to what appeared to be contradictory lines of study by the applicant in relation to his express desire to achieve a Master’s in professional accounting, despite only studying at a vocational education level since entering Australia in 2007. The Tribunal was not satisfied the applicant intends genuinely to stay in Australia temporarily. The Tribunal found the applicant did not meet the criteria under cl.572.223(i)(a) of sch.2 to the Regulations and affirmed the decision under review.

Proceedings Before the Court

1. On 25 August 2016, a Registrar of this Court made orders granting the applicant leave to file an amended application, affidavit evidence, and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair.

3. The Court explained to the applicant that, if satisfied that the Tribunal’s decision was affected by relevant legal error, the Court would set aside the Tribunal’s decision and send the matter back for further hearing. The Court explained that, if not satisfied that the Tribunal’s decision was affected by relevant legal error, the Court would dismiss the application. The Court explained to the applicant that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Application for an Adjournment

1. In the course of identifying the evidence, the applicant made an application for an adjournment. Other than having identified before the Registrar at the First Court Date on 25 August 2016 a desire for more time from the Court, no earlier notice of an adjournment application was given by the applicant to the first respondent or the Court. The applicant alleged that he had had a migration agent who was assisting him and had told him that he would obtain a lawyer for him. The applicant also made reference to taking steps approximately a week ago to try and obtain the benefit of legal representation.

2. The application was filed in this Court for relief on 30 June 2016. The applicant has had ample time if he is able to obtain legal representation. Nothing said by the applicant from the bar table identified any proper basis upon which the Court could be satisfied that the granting of an adjournment would be of any utility. In the circumstances of the present case, the Court is of the view that an adjournment would only unnecessarily add to the cost of the respective parties and utilise limited Court time. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice, and it is for these reasons an adjournment was refused.

Grounds of Application

1. The grounds of the application are as follows:-

   l. The Administrative Appeals Tribunal made a jurisdictional error in denying the Applicant's application for a Student (Temporary) (Class TU) visa in failing to consider all the facts and the law related to the Applicant's application particularly:

   Particulars:

   (a) The Administrative Appeals Tribunal refused visa because the Applicant did not satisfied the requirements of cl.572.223 of Schedule 2 to the Regulations as he did not satisfied the Genuine Entrant Criteria.

   • Provider Registration and International Student Management System indicated that the applicant has completed only 7 courses and enrolled in 30 courses in Seven years. The applicant has also changed courses and education providers several times. The applicant returned to Accounting acknowledging that a person may seek a change in career in delegate noted with short duration, low fees and unrelated fields of study.

   • The applicant previous student visa was due and the applicant applied for his enrolment in the current application which indicates the applicant has recommenced studying for the purpose of the visa application rather than due to a general interest.

   • The applicant circumstances in Australia, a strong incentive for him to remain. The applicant is in Australia since 2007, his Immigration history shows he has applied five times student visa since his arrival in Australia and has not travelled outside on multiple occasion short trips of few months. The applicant wish to remain in Australia permanently, but he had not made any effort to apply for any permanent migration or residence visa.

   (Errors in original)

2. From the bar table, the applicant, in substance, maintained that he was a genuine student. The applicant’s submissions from the bar table were, in substance, an invitation to this Court to engage in a merits review. This Court does not have power to review the merits of the application. Nothing said by the applicant from the bar table identified any jurisdictional error. On the material before the Court, the Tribunal complied with its statutory obligations during the conduct of the review. On the material before the Court, there is nothing to establish any want of procedural fairness by the Tribunal in the conduct of the review.

3. The assertion of error in Ground 1 of the application does not identify any arguable jurisdictional error. On the material before the Court, the Tribunal correctly identified the relevant criteria, and the adverse findings of fact were open to it on the material before the Tribunal.

4. From the bar table, the applicant made reference to requesting an adjournment from the Tribunal. The Tribunal’s reasons identify that the applicant asked for one week to provide further evidence. The Tribunal’s reasons record, having considered the applicant’s request, that it would not grant the time to allow further evidence to be provided because the issue is not whether the applicant could provide evidence of his successful studies in Australia, but rather the applicant did not seem to know what he had studied previously, or what courses he had successfully completed. The Tribunal highlighted that the applicant’s lack of knowledge was the issue, as this indicated very limited interest in his previous studies, and that evidence of such studies was not the issue.

5. It was open to the Tribunal, acting reasonably, to decline an adjournment in the circumstances identified. The refusal of an adjournment cannot be said to lack an evident and intelligible justification. It was open to the Tribunal to conclude that an adjournment would have been of no utility in light of the Tribunal’s concern as to the applicant’s knowledge of the courses that he had studied, and the significance of that in relation to the critical issue on which the applicant was clearly on notice, namely, whether the applicant intends genuinely to stay in Australia temporarily.

6. No jurisdictional error is made out by Ground 1 of the application. The application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 January 2017