Kumar v Minister for Immigration

[2016] FCCA 625

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 625

Catchwords:
MIGRATION – Visa – student visa – whether genuine applicant for entry or stay in Australia.

Legislation:

Migration Act 1958 (Cth), ss.476 and 499

Migration Regulations 1994 (Cth), cl.572.223

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Pilbara Infrastructure Pty Ltd and Anor v Australian Competition Tribunal and Ors (2011) 193 FCR 57

Applicant: PAWAN KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 192 of 2015

Judgment of: Judge Heffernan

Hearing date: 25 February 2016

Date of Last Submission: 25 February 2016

Delivered at: Adelaide

Delivered on: 4 April 2016

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Mr P d'Assumpcao for the Australian Government Solicitors

ORDERS

1. The Application filed 1 June 2015 is dismissed.

2. The name of the second respondent is amended to ‘The Administrative Appeals Tribunal’.

3. The applicant do pay the first respondent’s costs fixed in the sum of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 192 of 2015

PAWAN KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) seeking an order that the decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) be quashed. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa. There are two grounds to the application as follows:

   “1.I am a genuine student in Australia and I should be granted a student visa to continue my study.

   2.Immigration Department and Tribunal did not apply the regulations, policies and Ministerial Direction No.53 correctly.”

2. Mr Kumar attended before this Court unrepresented.  He made brief oral submissions which I will summarise later in these reasons.

Background and Tribunal hearing

1. Mr Kumar arrived in Australia in September 2008.  He is a citizen of India.  Since arriving in Australia, he has held a number of different visas.  These include student visas, and he provided evidence to the Tribunal of having completed a Certificate III in Printing and Graphic Arts, a Diploma in Multimedia, and a Diploma in Management.  Between November of 2012 and May 2014, Mr Kumar held a subclass 485 visa to enable him to obtain work experience in printing and graphic arts.[1]

   [1]     Court Book (‘CB’) p 73.

2. On 16 May 2014, approximately one week before his subclass 485 visa was set to expire, Mr Kumar applied for a further Student (Temporary) (Class TU) visa to enable him to undertake further studies.  He had apparently enrolled in a Certificate IV in Business Administration, a Diploma of Business Administration, and an Advanced Diploma of Management.[2]  The applicant attended before the Tribunal and gave evidence.  He told the Tribunal that he had undertaken his previous studies in order to set up his own business.  His previous Diploma of Management was aimed at teaching him to manage that business once it was set up.[3]  His explanation for wanting to undertake further courses in Business Administration and an Advanced Diploma in Management, was simply that he required more skills because, “it is a competitive world”.[4]  The Tribunal questioned him about the value of further study in his chosen area given his future plans.  It found his answers unsatisfactory in that the effect of his evidence was vague and lacking in detail.[5]  He could, apparently, not identify what extra skills he might gain by undertaking three more courses in business administration and management. 

   [2]     CB p 44.

   [3]     CB p 73.

   [4]     CB p 73.

   [5]     CB p 73.

3. When it came to describing his future business plans, the Tribunal also found that the applicant’s answers were vague and unsatisfactory.  It concluded that he appeared to have undertaken very little research into the feasibility of opening his own business in India, notwithstanding the fact that he had been in Australia in preparation for exactly that purpose since 2008.[6]  The Tribunal found that the applicant had not provided it with any satisfactory evidence of personal or commercial ties to India that would give him a substantial motivation to return.  The Tribunal was not convinced that the presence of the applicant’s parents in India would provide him with an incentive to return, in light of the fact that he had already been in Australia for seven years, and was seeking to stay for longer.[7]  The Tribunal regarded it as significant and appears to have given weight to the fact that notwithstanding the length of time that the applicant has been in Australia, he had only completed courses up to a vocational level.  It found that this was significant, given the lack of detail in his proposed future plans, and his inability to provide a convincing explanation as to why he needed to undertake further similar vocational courses.

   [6]     CB p 74.

   [7]     CB p 74.

4. Taking all of these matters into account, the Tribunal was not satisfied that the applicant intended to genuinely stay in Australia on a temporary basis and found that he did not meet cl.572.223(1)(a) of the Migration Regulations 1994 (Cth) (‘the Regulations’).

5. In considering the evidence given by the applicant, and the materials that he had placed before it, the Tribunal had regard to Direction No.53 – Assessing the genuine temporary entrant criterion for Student visa applications as it was required to under s.499 of the Act. It had appropriate regard to the direction and specifically noted that the factors identified in it were not a checklist, but simply intended to guide decision-makers when weighing up the applicant’s circumstances as a whole.[8]

   [8]     CB p 73.

Grounds of application

1. Both of the grounds in the application to this Court appear on their face to be an invitation to undertake a merits review.  This, of course, is not permissible.[9]  Both grounds appear to take issues with findings of fact made by the Tribunal and to dispute the outcome of the Tribunal hearing.  Whilst the second ground might appear to be an attempt to make a complaint about an error of law, or the failure to take into account a relevant consideration, or an error caused by taking into account an irrelevant consideration, the lack of particularity suggests otherwise.

   [9]     Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p 272.

Submissions

1. I turn to the oral submissions of the applicant.  Mr Kumar pointed to the fact that he had provided the Tribunal with a certificate from his college, together with a progress report.  He said that the Tribunal made a mistake in finding that he was not a genuine student, and that it should have found that he was.  Mr Kumar submitted in effect that the fact that he was actively engaged in a course of study, should of itself have been determinative, and unless rejected by the Tribunal, should have required it to find that he was a genuine student.  The effect of his submission was that if the Tribunal had properly taken into account his explanations and all of the materials he presented to it, then it could only have reached the conclusion that he was a genuine student.  To that extent, his oral submission further particularised ground one by implicitly including the contention that the Tribunal had behaved unreasonably in reaching its decision.  That submission was not further developed by the applicant.  Mr Kumar submitted that he does not think that he has done anything wrong since he arrived in Australia.  He pointed to the fact that he had undertaken his studies, and he could not understand why at this point he had not been granted a further student visa.

2. The respondent submits that ground one in the written application is clearly an invitation to undertake a merits review, which is not the function of this Court.  It submits that ground two in the written application was a broad brush complaint which fails to identify in any way how the regulations, policies and ministerial Direction No.53 were misapplied.

3. As to the question of the ultimate decision of the Tribunal demonstrating jurisdictional error on the basis of unreasonableness, the first respondent points to the decision in Minister for Immigration and Border Protection v Stretton.[10]  The first respondent submits that this authority sounds a note of a caution to intermediate Courts when dealing with the concept of legal unreasonableness and submits that it should not be used as a device simply to remake a decision on the merits.  It points to the decision of the High Court in Li’s[11] case, and submits that that the concept of unreasonableness, in the legal sense, should be interpreted conservatively so as not to become a backdoor vehicle for a merits review.  It properly reminded the Court that concepts such as “unreasonableness” should not be used to shoehorn merits based re-evaluations of evidence into an application for judicial review.[12]

   [10] [2016] FCAFC 11.

   [11]    Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

   [12]    Pilbara Infrastructure Pty Ltd and Anor v Australian Competition Tribunal and Ors (2011) 193 FCR 57 at [17].

Consideration

1. In part, Mr Kumar’s contentions to this Court, appear to be based on a misunderstanding of the time of decision criterion in cl.572.223. Relevantly, cl.572.223(1)(a) states:

   “(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

   (b)…”

2. The relevant degree of satisfaction in this subclause is not based on whether an applicant has done well in their studies, whether they have diligently applied themselves to their studies, or whether they are likely to do so in future. Rather, it requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because he is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to the matters set out in cl.572.223(1)(a)(i), (ii) and (iv) inclusive. The applicant submits that he is a “genuine student” in the sense that he is, and has been, studying courses here in Australia. That alone is not sufficient to satisfy the criterion. It does not address the aspect that was of most concern to the Tribunal, namely, whether he intended to stay in Australia temporarily. There appears to be no doubt that the applicant has from time to time diligently applied himself to the studies he has undertaken whilst living in Australia. The Tribunal did not doubt that he had successfully completed courses in the past. Whilst these were relevant matters, they had to be considered against his personal circumstances, his immigration history, and other relevant matters which the Tribunal found included his study history and the length of time he had already been in Australia, and proposed to stay.

3. With respect to ground two of the applicant’s written application, I am not satisfied that the Tribunal made any error in having regard to Direction No.53 in the manner in which it did.  There is nothing to suggest that it misunderstood the terms of that Direction, and it specifically noted that it was required to treat it as a guide only and not as a set of mandatory requirements.[13]

   [13] CB p 73 at [9].

4. The applicant has not demonstrated that there was jurisdictional error in the finding of the Tribunal. It was not satisfied the requirements of cl.572.223 had been met because it was not satisfied that he intended genuinely to stay in Australia only temporarily. I am satisfied that the findings of fact made by the Tribunal were open to it. There is nothing about the reasoning process of the Tribunal, or the conclusion that it reached which were unreasonable. There was nothing illogical or irrational in the finding. The Tribunal appeared to take into account all relevant matters that were before it and does not appear to have placed weight on any irrelevant considerations.

1. As I have noted, the oral submissions of the applicant were clearly directed at re-agitating the facts in this matter.  I dismiss the application.  I make the orders to be found at the beginning of these reasons.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 4 April 2016