Kumar v Minister for Immigration
[2016] FCCA 1720
•8 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1720 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student (Temporary) (Class TU) visa – whether the Tribunal’s reasons were irrational or illogical – whether the Tribunal took irrelevant considerations into account – bias – whether the applicant was denied procedural fairness – no arguable jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994, sch.2, cl.573.223 |
| Cases cited: Kumar v Minister for Immigration& Border Protection & Anor [2014] FCCA 2780. Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118. |
| Applicant: | VINAY KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2054 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 8 July 2016 |
| Date of Last Submission: | 8 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2016 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the First Respondent: | Ms R Krishnan Australian Government Solicitors |
ORDERS
The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.
The applicant pay the costs of the first respondent fixed in the amount of $2680.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2054 of 2015
| VINAY KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of the decision of the Tribunal made on 26 June 2015 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa. The applicant is a citizen of India and applied for the visa on 22 August 2012. The visa was refused on 31 January 2013 by the delegate, relevantly, on the ground that the applicant had failed to provide evidence to demonstrate that he was a genuine student as required by cl.573.223 of Schedule 2 of the Migration Regulations 1994.
On 9 December 2013, a differently constituted Tribunal affirmed the decision of the delegate. That decision was set aside on 28 November 2014 for reasons given in Kumar v Minister for Immigration& Border Protection & Anor [2014] FCCA 2780. By letter dated 6 February 2015, the Tribunal invited the applicant to appear before it to give evidence. On 23 March 2015, the applicant appeared before the Tribunal to give evidence and present arguments and was assisted by an interpreter.
It is apparent from the Tribunal’s reasons that it raised with the applicant as a live issue whether he met the requirements of cl.572.223(1)(a) and that the Tribunal needed to be satisfied on the evidence that he was a genuine applicant for entry and temporary stay as a student. Clause 573.223(1)(a) provides as follows:
Criteria in the Migration Regulations Not Satisfied
Regulation
573.223
[(1) substituted by SLI 2011, 199 with effect from 05111/2011 - LEGEND note]
(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; and…
The Tribunal identified the applicant’s time spent in Australia and time spent overseas and the courses that he had commenced and not completed and the limited courses completed. The Tribunal raised with the applicant that he had been in Australia for seven years and achieved one course which took six months and that he had, in this time, been certified for unsatisfactory course progress and had not been enrolled in any course from December 2013 to the date of the Tribunal hearing. The Tribunal raised with the applicant that, if he was a genuine student, he would use every opportunity to study.
The Tribunal also raised with the applicant that his educational pathway did not seem to be leading to his claimed goal to be a chef. The Tribunal also raised with the applicant why he could not study in India. The Tribunal raised with the applicant that his past study history of not completing many courses, long periods of not being enrolled, and that it appeared his educational pathway did not reflect that it was leading to his claimed future goal of being a chef, whereby the Tribunal may conclude that he was not a genuine applicant for entry and stay as a student.
The Tribunal asked the applicant about the course that he was currently enrolled in and identified the applicant’s unsatisfactory answers. The Tribunal provided the applicant with a further seven days to provide any further detail and enrolment certificates that he wished to provide. There is nothing in the reasons of the Tribunal or the evidence before the Court to indicate that any further time was requested by the applicant to put on submissions. There is a letter dated 30 March 2015 from the applicant’s migration representative sent to the Tribunal after the hearing providing further information and it made no request for any further time.
The Tribunal gave detailed reasons for finding that he was not satisfied that the applicant was a genuine temporary entrant. That adverse finding cannot be said to lack an evident and intelligible justification. It was in those circumstances that the Tribunal found that the applicant was undertaking study in Australia as a pathway to primarily maintain residence in Australia. The Tribunal found that it was not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal was not satisfied the applicant intends to genuinely stay in Australia temporarily. Having regard to the evidence advanced and considered by the Tribunal, the Tribunal found the applicant did not meet the requirements of cl.572.233(1)(a) of the regulations. It was in those circumstances the Tribunal affirmed the decision of the delegate.
A Registrar of this Court made orders on 20 August 2015 providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. On 8 April 2016, this Court fixed the matter today for hearing under r.44.12 of the Federal Circuit Court Rules 2001 and provided the applicant with a further opportunity to amend his application, put on affidavit evidence and file submissions. No such documents were filed. The application identifies the following grounds:
1. The Migration Review Tribunal relied on grounds that were illogical and thereby the Tribunal erred jurisdictionally.
2. That the tribunal member used the words “you want to live here” repeatedly and caused undue pressure on me and failed to accord a fair hearing to the applicant resulting in breach of natural justice
3. The applicant was denied procedural fairness.
At the commencement of the hearing, the Court explained to the applicant that the matter was fixed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. The Court explained to the applicant that the show cause hearing was one in which the Court would determine whether there was an arguable case of relevant legal error in the decision of the Tribunal. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.
In summary, the Court explained that it was determining whether there was an arguable case that the decision was made unlawfully or an arguable case that the decision was unfair. The Court explained to the applicant that, if satisfied there is an arguable case, the matter would be fixed for hearing on another occasion. The Court explained to the applicant that, if not satisfied there is an arguable case, the application would be dismissed. The Court explained to the applicant that it would identify the evidence and then hear submissions from the applicant and then submissions from the solicitor for the first respondent and then hear submissions from the applicant. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
From the bar table, the applicant maintained that, at the time of the hearing, he had been unable to get proper advice from his solicitor because his solicitor was not well and that he had needed more time to put on material because his solicitor was unwell. The applicant’s inability to obtain advice from his solicitor at the time of the hearing before the Tribunal is not a matter that identifies any legal error by the Tribunal. It is not apparent that there was an issue relating to his solicitor being unwell or unable to give advice being raised before the Tribunal.
Further, it is apparent that the Tribunal provided the applicant with an opportunity to put on further evidence and no further request was made to the Tribunal for any additional time. In those circumstances, nothing said by the applicant in relation to his solicitor being unwell or his desire to put on further material identifies any arguable case of jurisdictional error by the Tribunal. The applicant maintained that he was undertaking courses as a genuine student and, in essence, put submissions inviting this Court to engage in an impermissible merits review.
This Court does not have power to make fresh findings in relation to whether the applicant was a genuine applicant for entry and stay as a student. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.
In relation to ground 1 of the application, the evidence identified by the Tribunal supported the adverse finding that it was not satisfied that the applicant was a genuine temporary entrant. That finding was open on the material before the Tribunal and cannot be said to be unreasonable.
It is apparent that the Tribunal took into account the applicant’s wishes to remain in Australia and the limited progress that he had made and lack of educational pathway towards a particular goal. The finding that the applicant was using a student visa to maintain ongoing residence and to circumvent the intentions of the migration program was open on the material before the Tribunal. This adverse finding by the Tribunal cannot be said to be the subject of any unreasonableness or illogicality argument. Ground 1 fails to identify any arguable jurisdictional error.
In relation to ground 2, it is apparent from the Tribunal’s decision that the Tribunal tested the applicant’s evidence, as it was entitled to do, in relation to whether the applicant was a genuine applicant for entry and stay as a student. There is no evidence before the Court to establish that the Tribunal member repeatedly put the same question and no evidence to establish any arguable case of conduct by the Tribunal putting undue pressure upon the applicant.
Asking the applicant questions in relation to whether the applicant was a genuine applicant for entry and stay as a student is not conduct that gives rise to any arguable case of bias. The asking of the applicant of questions concerning whether he was a genuine applicant for entry and stay as a student is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, fair and impartial mind to the determination of the matter on its merits. Nor is the testing of the applicant’s evidence unfair pressure.
On the material before the Court, the applicant had a genuine hearing and the live issue, as to whether the applicant was a genuine applicant for entry and stay as a student, was squarely raised during the hearing. Ground 2 fails to identify any arguable case of jurisdictional error.
Ground 3 is a generalised assertion of denial of procedural fairness and fails to identify any arguable case of jurisdictional error. To the extent that ground 3 relies upon the conduct identified in ground 2 for the reasons given, that is not conduct that gives rise to any arguable case of jurisdictional error.
To the extent that the applicant relies upon what was said in relation to his solicitor being unwell at the time of the hearing before the Tribunal and his desire to put on further submissions for the reasons earlier given, neither of those matters identified any arguable jurisdictional error. Ground 3 fails to identify any arguable case of jurisdictional error.
I am satisfied that the application fails to disclose any arguable case. I take into account the principles and caution in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.
The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 20 July 2016
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