Kumar v Minister for Immigration & Anor
[2018] FCCA 678
•13 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 678 |
| Catchwords: PARTICULARS – None given by applicant – application amenable to dismissal for that reason alone – four key cases in the Federal Court of Australia cited. |
| Legislation: Migration Regulations1994 (Cth) sch.2 cl 572.223(1)(a) |
| Cases cited: AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 |
| Applicant: | SUNNY KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2063 of 2015 |
| Judgment of: | his Honour Judge Wilson |
| Hearing date: | 7 March 2018 |
| Date of Last Submission: | 7 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 13 March 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
ORDERS
I dismiss this proceeding.
I order the applicant to pay the first respondent’s costs in the fixed sum of $5500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2063 of 2015
| SUNNY KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINIISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
On 21 August 2014, the applicant applied for a Student (Temporary) (Class TU) visa, and on 3 December 2014, the minister’s delegate refused that application.
On 12 November 2014, the applicant applied for a merits review of his visa application before the Migration and Review Division of the Administrative Appeals Tribunal.
On 13 August 2015, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa he sought. Being dissatisfied with the decision of the Tribunal, on 10 September 2015 the applicant applied for the issue of constitutional writs on the basis that the Tribunal had fallen into jurisdictional error.
A brief history
The applicant relied on two grounds of application in this proceeding. It is useful to record them verbatim. They were –
“I am not happy with the decision because I am a genuine student, was studying during MRT and still completing my course (2) if I complete my hospitality study in Australia and want to be perfect in this professional so it’s easy for me to get a job in India, I think and requesting decision should be reviewed.”(sic)
Naturally, the linguistic complications in that quoted section immediately above are to be explained by the fact that English is not the applicant’s first language. In any event, the applicant was not legally represented, and it seemed to me that it was appropriate to confer a high degree of latitude on the applicant in his presentation of this case.
It is necessary to first examine the Tribunal’s reasons with a view to detecting error.
On 21 July 2015, after the applicant had applied to the Tribunal on 12 November 2014, the Tribunal wrote to the applicant inviting him to attend a hearing before it. In that letter, the Tribunal expressly stated that it would assess whether the applicant intended genuinely to stay in Australia as required by sch.2 cl 572.223(1)(a) of the Migration Regulations. In that letter, the Tribunal also provided a copy of Direction Number 53. The Tribunal requested the applicant to provide a written statement addressing the issue of whether he was a genuine temporary entrant referred to in Direction Number 53. The Tribunal requested that written statement at least seven days prior to the hearing set for 5 August 2015.
Direction 53, a copy of which was provided to the applicant, expressly stated that the genuine temporary entrant criteria required the minister to be satisfied that the applicant intended genuinely to stay in Australia temporarily, having regard to four matters, those being –
a)the applicant’s circumstances
b)the applicant’s immigration history
c)if the applicant is a minor, an issue not presently relevant, and
d)any other relevant matter.
Direction 53 set out in detail the matters to which a decision-maker needed to have regard in respect of each of the applicant’s circumstances, the applicant’s immigration history, the matters if the applicant was a minor and any other relevant matters.
There could have been no doubt that upon receipt of the invitation to attend the hearing as well as receiving the copy of the Direction Number 53 the applicant was put on notice that the Tribunal was interested to know the points the applicant wished to advance that addressed the requirements of sch.2 cl 572.223(1)(a)of the Migration Regulations.
The applicant emailed the Tribunal on 28 July 2015 with his submissions and various documents. In the submissions, the applicant spoke of the difficult personal circumstances occasioned by his divorce, his intention to enrol in a hospitality course, that he was a good student having attended all his classes, that he had no intention to stay permanently in Australia, that his life would be worse without a student visa and that he believed the hospitality industry was booming. The precise text of his submission was recorded at paragraph 6 of the Tribunal’s reasons.
The applicant attended a hearing before the Tribunal that commenced at 9.49 am on 5 August 2015 and was completed by 10.18 am the same day.
On 14 August 2015, the Tribunal wrote to the applicant informing him that the Tribunal refused his application for a student visa. The Tribunal correctly identified as the relevant question whether the applicant met sch.2 cl 572.223(1)(a)of the Migration Regulations and that the Tribunal needed to address Direction 53. So far as the applicant’s circumstances in India and Australia were concerned, the Tribunal said it had considerable concerns with his claims. The Tribunal turned in paragraphs 16 and 17 of its reasons to the applicant’s immigration history. It must be recalled that the applicant was granted a student dependent visa on 5 June 2009 prior to his arrival in Australia on 30 June 2009. He was granted a further student dependent visa on 2 December 2013 valid until 17 October 2014. He applied for the subject visa on 21 August 2014. When supplying documentation in support of his visa application, he provided a copy of his divorce order. The divorce took effect from 11 August 2014 meaning that his marriage broke down on or prior to 11 August 2013. The Tribunal recorded in paragraph 16 of its reasons that the applicant did not adduce any evidence that he attempted to seek assistance from the minister’s department to continue to satisfy the primary conditions for the grant of a student dependent visa including continuing to be a dependent on his former wife. The Tribunal recorded that the applicant thereby stood in breach of condition 8516 of his last student dependent visa. In paragraph 17 of its reasons the Tribunal stated that by reason of the applicant’s immigration history and his breach of condition 8516, the Tribunal was concerned about the genuineness of the applicant’s intended stay in Australia.
In paragraph 18 of its reasons the Tribunal recorded the applicant’s evidence that the applicant had been in Australia for five years to that point as the holder of a student dependent visa during which time he did not undertake any study. The applicant said he did not expect his marriage to end. The Tribunal said his evidence led the Tribunal to suspect that the applicant’s only reason he was considering study after five years in Australia was due to his marriage ending. The Tribunal also referred to the applicant’s comment in his written statement to the effect that he felt lonely and did not want to go back to India.
Between paragraphs 19 and 20 of its reasons, the Tribunal addressed the applicant’s circumstances in India. The Tribunal stated that the fact of the applicant’s long period in Australia before he even considered studying indicated that the student programme was being used by the applicant primarily to maintain residence in Australia.
In paragraph 21 of its reasons the Tribunal stated that the applicant had completed a high school diploma in 2001 and after a 14-year study gap was seeking to undertake a course not consistent with his current level of education. The Tribunal expressed its concerns with that.
The Tribunal said the applicant did not meet an essential element of sch.2 cl 572.223(1)(a) of the Migration Regulations. It affirmed the delegate’s decision not to grant the applicant the student visa he sought.
In this Court
The grounds of review on which the applicant relied have already been set out. It is necessary to take them in turn.
Ground 1
Under the first ground, the applicant asserted he was not happy with the Tribunal’s decision because he was a genuine student and he was still completing his course. In discussion with the applicant when he appeared before me, I asked him to tell me in his own words what he said the Tribunal did wrong. He gave a lengthy response. Relevantly distilled, it amounted to five points to which he wanted me to pay close attention, namely –
a)he and his wife divorced;
b)the arguments between them led to his suffering depression;
c)he should have one more chance to do something with his life;
d)he has spent almost nine years in Australia; and
e)he wanted to do something good with his life.
Naturally, I accept that the applicant believed earnestly in the truth of those matters. Yet on the hearing of an application for judicial review, as the application with which I am now concerned, I am constrained to a consideration of the existence or otherwise of jurisdictional error of the sort canvassed in Craig v South Australia (1995) 184 CLR 163 and Kirk v Industrial Relations Court (2010) 239 CLR 531. In those cases, the High Court held, in effect, that an administrative tribunal falls into error of law amounting to jurisdictional error with the effect of invalidating any order or decision of the Tribunal if the Tribunal –
a)identifies a wrong issue;
b)asks itself a wrong question;
c)ignores relevant material;
d)relies on irrelevant material; or
e)in some instances makes an erroneous finding or reaches a mistaken conclusion.
In Kaur v Minister [2016] 304 FLR 436 I reviewed the extensive array of authorities on point.
In this case none of the five points mentioned above, nor the applicant’s unhappiness with the Tribunal’s decision, amount to jurisdictional error of the sort identified above. In reality, the applicant was unhappy with the fact that the Tribunal found that he did not comply with sch.2 cl 572.223(1)(a) of the Migration Regulations. But that is not the correct matter for me. It seemed to me that the Tribunal’s assessment of whether the applicant intended genuinely to study in Australia was correct. The Tribunal identified the correct regulation, the correct ministerial direction and the correct criteria to be considered. The conclusion it reached was open once the Tribunal identified the correct issues for its consideration. The study gap was significant in this case. The applicant’s study history was poor. The Tribunal gave consideration to condition 8516 when expressing its concern about the applicant’s genuineness of his intended stay in Australia.
In my opinion, the Tribunal’s assessment of the applicant as a genuine temporary entrant was accurate and correct. The fact that the applicant was not happy with that determination did not demonstrate jurisdictional error. Ground 1 was devoid of merit.
Ground 2
The second ground was not a proper ground of review. It gave no insight into the matters of fact or law by which the Tribunal could be said to have fallen into jurisdictional error. The ease with which the applicant might secure employment in India was purely speculative. It did not tell of the existence of jurisdictional error.
No Particulars
In making the comments above, I have considered the issue in this case in some detail. Of course, it was open to me to dismiss this proceeding on the basis that neither ground of application was particularised. A solid stream of jurisprudence in migration law exists to the effect that a ground of application expressed at a level of generality such that it is meaningless in the absence of particularisation is amenable to dismissal. The cases that have so held include WZATH v Minister for Immigration and Border Protection [2014] FCA 969, BHK15 v Ministerfor Immigration and Border Protection [2016] FCA 569, AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 and WZAVW v Minister for Immigration and Border Protection [2016] FCA 760. I propose to apply the reasoning in those cases to the facts of this case.
Conclusion
Each ground of application was devoid of merit. Neither ground of application was particularised. This application for judicial review failed. I dismiss this proceeding and order the applicant to pay the respondent’s costs in $5,500.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 22 March 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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