Kumar v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 107
•14 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 107
File number(s): MLG 2293 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 14 February 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Student (Class TU) (subclass 500) visa – where Tribunal found applicant not to meet ‘genuine temporary entrant’ criterion – where Tribunal’s findings reasonably open on the evidence before it – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 357A, 476
Migration Regulations 1994 (Cth), sch 2, cl 500.212
Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submission/s: 23 January 2024 Date of hearing: 23 January 2024 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr A Cunynghame of Sparke Helmore ORDERS
MLG 2293 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VIMAL KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The applicant’s application filed on 3 August 2018 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 19 July 2018. By its decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to refuse the applicant a Student (Class TU) (subclass 500) visa (‘student visa’).
BACKGROUND
The applicant is an Indian citizen.[1]
[1] Court book at page 2.
He completed a Bachelor of Arts in India in 2001.[2] After graduating, he worked in a series of roles with multinational companies in India for some six years.
[2] Court book at page 49.
The applicant first came to Australia in April 2009 on a student (Class TU) (subclass 572) visa to study Certificate III in Graphic Arts & Diploma in Digital Interactive Media at the Southern Cross Institute.[3]
[3] Court book at page 49.
Application for student visa on 13 October 2016
On 13 October 2016, the applicant applied for his student visa.[4] In support of his application, the applicant submitted a statement addressing the ‘genuine temporary entrant’ criterion, which is set out at pages 49 to 57 of the court book.
[4] Court book at pages 1 to 18; Court book at page 65.
History of study in Australia
In this statement, the applicant sets out various courses that he enrolled in but was unable to complete for various reasons. The applicant then enrolled in and successfully completed a Certificate IV in Small Business management and Diploma of Management.[5]
[5] Court book at page 50.
The applicant further states that whilst studying, he was working in aged care and on completion of this initial course, he enrolled in community services courses.[6] He completed a Diploma of Community Services Work, then undertook a Diploma of Business before seeking to enrol in Diploma of Marketing and Advanced Diploma of Marketing. He says that he was unable to complete this last course due to problems with his aging parents and his own depression.
[6] Court book at page 51.
The applicant goes on to state that he then formed the view that he would like to open a small not for profit organisation on his return to India so that he could continue working in the aged care sector and that this would also enable him to care for his aged parents when he returns to India.[7] He said this is the reason why he decided to enrol in a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma of Hospitality. At the time of his statement, he had completed the Certificate III in Commercial Cookery, but was yet to complete the Certificate IV and the Diploma.
[7] Court book at page 52.
Reasons for choosing education provider, study in Australia and future work plans
In his statement, the applicant then sets out the reasons why he chose the education provider, why he was proposing to study in Australia, rather than India, and further details his work plans for the future. In particular, the applicant states that his intention is to establish an aged care facility in India on his return.[8]
[8] Court book at page 54.
As to whether he satisfied the requirement that he is a ‘genuine temporary entrant’, the applicant said:
From my heart I can say I am genuine and honest, …. I am honest and have genuine intention … I don’t want earn any money or get PR in Australia. Just simple Human being came to Australia to study some studies for future career and slowly as age goes up ideas been changed and mean while became 44 years old wanted be single wish to finish the cert IV and Diploma of Hospitality which is for one year could be considered by officer with kindness.[9] (sic)
[9] Court book at page 57.
Refusal of student visa on 22 November 2016
By letter dated 22 November 2016, the applicant was advised that his application for a student visa had been refused.[10]
[10] Court book at pages 66 to 73.
Application for review at Tribunal on 29 November 2016
On 29 November 2016, the applicant sought a review of the delegate’s decision in the Tribunal.[11]
[11] Court book at pages 74 to 75.
By letter dated 13 March 2018, the applicant was invited to attend a hearing before the Tribunal, scheduled for 12 April 2018.[12] The Hearing Record indicates that the hearing took place on that date and that it commenced at 10:45am and concluded at 12:04pm.[13] The applicant attended at the hearing and was assisted by a representative.
[12] Court book at pages 82 to 85.
[13] Court book at pages 92 to 94.
On 19 July 2018, the Tribunal notified the applicant of its decision to affirm the delegate’s decision to refuse the applicant’s student visa.[14]
[14] Court book at page 109 and following.
TRIBUNAL DECISION
The Tribunal’s decision record of 19 July 2018 is set out at pages 111 to 116 of the court book.
In its reasons, the Tribunal set out the criteria for the granting of a student visa.[15] Relevantly, the primary criteria which must be satisfied by the applicant includes that he is a ‘genuine applicant for entry and stay as a student’. Relevantly, that requires a finding under clause 500.212(a) of the Migration Regulations 1994 (Cth) (‘the Regulations’) that:
The applicant is a genuine applicant for entry and stay as a student because:
(a)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
…
(iv) any other relevant matter …[16]
[15] Tribunal decision record dated 9 July 2018 at paragraph [9] and following.
[16] Migration Regulations 1994 (Cth), cl 500.212.
The determinative issue before the Tribunal was whether the applicant intended genuinely to stay in Australia temporarily.[17] In considering this issue, and after setting out the applicant’s early study history summarised above, the Tribunal noted at paragraph [16]:
16.The applicant did not satisfactorily explain why a University graduate with 6 years of good sales and marketing experience with international companies, would wish to travel to Australia at considerable cost to enrol in vocational studies. Having made that somewhat curious decision, the applicant commenced these studies only to withdraw from the courses due to his dissatisfaction with ‘the course and the college’.
[17] Tribunal decision record dated 9 July 2018 at paragraph [9].
After summarising the applicant’s further study history, the Tribunal went on to say at paragraph [19]:
19.… it is open to Student visa holders to change their minds and therefore their study options relating to career and academic objectives. However the applicant’s switching from graphics to management to community services, back to business and then finally to hospitality studies is significant enough for the Tribunal to hold grave doubts about the genuineness of his intentions; this is so particularly given his University qualification and solid work experience in India prior to his arrival in Australia.
At paragraphs [20] to [26], the Tribunal considered the applicant’s circumstances in India and in Australia. Relevantly, the Tribunal observed at paragraph [24]:
24.Overall, the Tribunal finds it difficult to reconcile the applicant’[s] extensive proposed stay onshore and his ‘meandering’ study history, with his claim that he is a genuine temporary resident. Rather, the evidence suggests that his circumstances in Australia, including the opportunity to work part-time, outweigh any incentive he may have to depart.
Ultimately, the Tribunal concluded at paragraph [27] that it was not satisfied, on balance, that ‘the applicant genuinely intends to depart when he finishes his current course at the end of this year’. The Tribunal therefore concluded at paragraph [28] that the applicant did not satisfy the requirements of clause 500.212(a) of Schedule 2 of the Regulations in that he did not genuinely intend to stay in Australia temporarily.
The Tribunal further concluded at paragraph [34] that it:
34.… has formed a strong view that the applicant’s enrolments are for the primary purpose of maintaining residence in Australia. He has not, in 9 years, progressed beyond relatively short and inexpensive VET courses and has had made (sic) several changes to his study pathways, which the Tribunal finds were, and are motivated by migration and visa considerations.
The Tribunal therefore found that the criteria for the grant of a student visa were not met and affirmed the delegate’s decision.[18]
PROCEEDINGS IN THIS COURT
[18] Tribunal decision record dated 9 July 2018 at paragraphs [36] to [38].
Application for judicial review filed on 3 August 2018
On 3 August 2018, the applicant filed his application for judicial review in this court, accompanied by an affidavit in support sworn on the same date.
In his application, the applicant sets out the following in the ‘Grounds of Review’ section:
1.I am applying for judicial review of the decision of the Administrative appeal tribunal dated on 19 July 2018, affirming a decision of immigration officer made on 22 November 2016 not to grant me a Student (Temporary) (Class TU) visa on the basis of I am not a genuine student in Australia.
2.The delegate had refused to grant my student visa (500 Subclass) under s.65 as case officer believed that I did not satisfy the requirements of cl 500.212 of Schedule 2 to the Regulations. The decision is seems to me that it has been taken deliberately by case officer according to my Immigration history.
3.Tribunal has emphasises that I am not genuine student of against the same criterion, but no consider my outcry, I am 44 years old studying to complete last two years of education settle in life back in India where I can live 10 more years on this earth. Still case officer and tribunal member have enforced strong laws on me as such weak person. It is not fair at all, my Australian education is becoming more expensive with these proceedings. I believe Tribunal member hasn’t assessed my factors in right way which is Jurisdictional error.
4.Also I have been supported by old aged parents, in one of the parents, my father has worked in Indian Army and retired, he is spending his hardened money for my education, this factors hasn’t been considered at all. I have explain everything to member, given enough material of my opportunities back in India with this pursuing education. These things not been considered by tribunal and by immigration. My case has been assessed with case officer and member with their personal discretion. Genuine temporary criterion is huge, like an Ocean, under this law every overseas student can be refused a student visa. It is not fair at all. This factor made the authorities judicially wrong and hurting good & honest student like me.
5.I believe the decision has been made by Delegate and Tribunal affected by jurisdictional error because the Tribunal misunderstood and misapplied the criterion 500.212 of Part 500 of Schedule 2 of the Migration Regulations 1994 in respect of the application only on the basis of my Immigration history and Inexpensive courses. Why this word being used now and why these word not been used previously when I came to Australia. There is no such words written in criterion (Immigration Regulations) which has been provided by case officer and tribunal Member. How come case officer or tribunal member uses the “Inexpensive word’ in the proceeding? I feel it is jurisdictional error.
6.[T]he Tribunal failed to consider my situation and also failed consider my thoughts and articulations in regards to my relevancy in completed courses, in my view study is asset, if there is no limitation for education. I am a common man who looks for the education gives me bet career to have my own bread and butter to survive. Same thing done by me. Just three months left to finish the course. Still there is no mercy on me. There is no procedural fairness at all.
7.Also there are some case references I have read, in those decisions honourable judges from apex court have clearly given meaning of genuine temporary criterion. It looks like those definition and judgements will imply on me. That is the reason I am bringing this matter to Federal circuit court for natural justice.
8.I hope Justice will understand my situation and serve the right judgment in my case.
As noted, in support of his application, the applicant filed an affidavit also sworn on 3 August 2018. In that affidavit, applicant relevantly provided the following information:
3.I am bachelors, and 44 years old, won’t be able to lodge any further visas in Australia
4. I need Australian education very truly, my intention is genuine intention in completing the education in Australia.
5.I will get better career opportunities in India if I finish these qualifications in Australia
6. I can’t afford the barrister to lodge the Judicial review application at this stage
7. That is the reason I am applying on my own.
8.I am working Aged care industry for 6 years as a part time employee in Australia serving Australian Senior citizens.
9. I am honest and genuine.
10. I can pay the court fee.
11. All documents and claims are genuine.
Hearing on 23 January 2024
The matter came on before me for hearing on 23 January 2024. On this occasion, the applicant represented himself before me.
At the commencement of the hearing, I explained in lay terms the role of the court in a judicial review application, and in particular, that it was not the role of the court to determine whether the applicant should be granted a visa, but rather, to consider whether the Tribunal had engaged in a jurisdictional error in making its decision.
Applicant’s oral submissions
When asked whether the applicant had any submissions he wished to make in support of his application, the applicant made various submissions about the unfairness of the immigration system which continually changes, making it difficult for visa applicants.
The applicant further stated that he undertook courses which were on an approved list at the time, paid his fees, did not engage in any criminal conduct and made a positive contribution to the country through the work he was undertaking.
He further stated that although the courses that he undertook were in different areas, he undertook them as part of his interest in community service and aged care. Therefore, for example, to the extent that he undertook a hospitality course, he said that it was not with a view to working in the hospitality industry in, for example, a casino, but rather, to support the work that he was doing in the community service and aged care areas.
The applicant also said that he was well-regarded in the community in which he worked and although he had not submitted them with his application, he could provide referees who would attest to the positive work that he was undertaking in industries that needed people like him.
The applicant did not make any submissions which otherwise added to or clarified the matters contained in his judicial review application or in his affidavit in support.
GROUNDS OF REVIEW
Turning now to the applicant’s application for judicial review.
Without being critical in any way of the applicant who represented himself in these proceedings, the grounds of review are not in a form that one would ordinarily expect. Notwithstanding that, I will consider each of them and address the concerns raised which might properly be said to give rise to a ground of review. In doing so, I will refer to the paragraph numbers contained in the application.
Paragraphs 1 and 8
Paragraph 1 simply sets out the nature of the application made by the applicant and paragraph 8 implores the court to find in the applicant’s favour. As such, they do not raise any proper ground of review and do not disclose any error on the part of the Tribunal.
Paragraph 2
Paragraph 2 refers to the delegate’s decision. To the extent that this paragraph could be understood to be a complaint about the delegate’s decision, that is a matter beyond this court’s power. The court has no jurisdiction to review a decision of the delegate or other primary decision maker.[19]
[19] Migration Act 1958 (Cth), ss 476(2), 476(4).
Paragraph 3
By paragraph 3, the applicant takes issue with the conclusions reached by the Tribunal. To this extent, it arguably does little more than seek impermissible merits review. In any event, I am satisfied that the conclusions reached by the Tribunal on the dispositive issues were logical and probative and were open on the material before it. A disagreement with the conclusions reached, no matter how strong, does not, of itself, evidence jurisdictional error.
Paragraph 4
By paragraph 4, the applicant seems to be suggesting that the Tribunal did not consider the evidence that he put before it as to the reasons why he was studying in Australia and what he hoped to achieve on his return to India. The applicant also seems to take issue with the breadth of the definition of the ‘Genuine Temporary Entrant’ requirement and says that it is such a broad concept that it is unfair.
This, with respect, misconceives the role of this court in a judicial review application. The fairness or otherwise of the legislative requirements are for other branches of government. Ultimately, the conclusions reached by the Tribunal were based on the evidence given by the applicant which the Tribunal considered, but did not accept, namely that he genuinely wanted to return to India once he ceased his studies. This finding was open on the evidence, and in reaching this conclusion, the Tribunal explained its reasons in a logical manner.
Moreover, to the extent that paragraph 4 seeks to suggest that the Tribunal erred by failing to consider evidence before it, this ground is not made out. It is clear from the summary of the Tribunal’s reasons set out above that it understood the applicant’s evidence and considered it, but simply did not find it convincing. That finding was reasonably open to the Tribunal.
Paragraph 4, therefore, does not identify any jurisdictional error.
Paragraph 5
By paragraph 5, the applicant suggests that the Tribunal erred by having regard to an irrelevant consideration, namely, whether the courses that the applicant had enrolled in were ‘inexpensive’. The applicants argues in paragraph 5 that in doing so, the Tribunal misunderstood and/or misapplied the criterion in clause 500.212 of Schedule 2 of the Regulations. As outlined above, clause 500.212 requires the decision-maker to make an assessment as to whether the visa applicant ‘intends genuinely to stay in Australia temporarily’, by having regard to the applicant’s immigration history and circumstances.
When the Tribunal’s reasons are read as a whole and without a keen eye to error,[20] it was open to the Tribunal to have regard to the nature of the courses that the applicant had enrolled in since being in Australia. It was not just that the applicant had only been enrolled in inexpensive courses which led the Tribunal to conclude that he was not a genuine temporary entrant; rather, it was the combination of the nature of the courses that he had enrolled in whilst in Australia, being relatively short and inexpensive VET courses, against the background of the educational level that he had already completed in India prior to coming to Australia.
[20] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Moreover, the conclusions reached at paragraph [34] of the Tribunal’s decision record must be read in the context of the opening words in that paragraph, namely, ‘The Tribunal has considered all relevant facts and matters …’ (emphasis added). Moreover, this paragraph must be viewed against the Tribunal’s earlier findings at paragraphs [16] and [19], set out above. When the Tribunal’s comments at paragraph [34] are viewed in context, I find that the Tribunal did not misunderstand or misapply the criterion in clause 500.212 of Schedule 2 of the Regulations.
For these reasons, paragraph 5 does not disclose any jurisdictional error.
Paragraph 6
By paragraph 6, the applicant asserts that the Tribunal failed to consider his evidence and his views, and that in doing so, it denied him procedural fairness.
Section 357A of the Migration Act1958 (Cth) (‘the Act’) provides that Division 5 is an exhaustive statement of the requirements of natural justice. There is no evidence in the court book that the Tribunal did not comply with these procedural fairness requirements. As stated, the applicant was invited to attend a hearing before the Tribunal. The applicant attended and was assisted by his representative and an interpreter.
Moreover, the applicant was aware of the dispositive issue as a result of the delegate’s decision. It is clear that he understood that the issue was whether the Tribunal found him to be a genuine temporary entrant. The Tribunal’s reasons identify the material that it had regard to. There is therefore no evidence of any breach of the procedural fairness requirements in Division 5 of Part 5 of the Act.
Paragraph 6 therefore does not disclose any jurisdictional error.
Paragraph 7
By paragraph 7, the applicant seems to suggest that there are judicial decisions which might assist him in this case. The applicant has not identified what those decisions might be, nor did he do so at the hearing before me.
Paragraph 7 therefore does not disclose any jurisdictional error.
CONCLUSION
As no jurisdictional error has been made out, I order that the applicant’s application be dismissed.
In the first respondent’s response to the application, the first respondent also sought an order that the applicant, if unsuccessful, pay its costs. As the applicant’s application was unsuccessful, I am also satisfied that an order should be made for the applicant to pay the first respondent’s costs in a sum to be fixed if not agreed.
For these reasons, I make the orders set out at the commencement of these written reasons for judgement.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 14 February 2024
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