Lakku v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3459
•17 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Lakku v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3459
File number(s): BRG 229 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 17 December 2020 Catchwords: CITIZENSHIP AND MIGRATION – Migration – show cause – no arguable case for relief revealed by grounds in application Legislation: Migration Act 1958 (Cth), ss 359A, 359AA,
Migration Regulations 1994 (Cth), cl 500.212 of Schedule 2
Federal Circuit Court Rules 2001 (Cth), rr 44.12(1), 44.13(1), Sch. 1
Cases cited: Jan v Minister for Home Affairs [2019] FCA 1837 Division: General Division Number of paragraphs: 33 Date of last submission/s: 12 November 2020 Date of hearing: 12 November 2020 Place: Brisbane The Applicant: Self-represented Solicitors for the First Respondent: Sparke Helmore The Second Respondent: Entered a submitting appearance ORDERS
BRG 229 of 2020 IN THE MATTER OF LAKKU V MINISTER FOR IMMIGRATION
BETWEEN: CHENCHU KRISHNA REDDY LAKKU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JARRETT
DATE OF ORDER:
17 DECEMBER 2020
THE COURT ORDERS THAT:
1.Pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth), the application filed on 26 February, 2020 be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,737.00.
REASONS FOR JUDGMENT
JUDGE JARRETT:
By his application filed on 16 April, 2020 the applicant seeks judicial review of a decision of the second respondent made on 20 March, 2020 which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (visa).
The application was listed for a show cause hearing before me. Pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) the issue for determination is whether the application raises an arguable case for the relief claimed in the application: FCCR 44.12(1). In satisfying the Court that there is an arguable case, the applicant is confined to the relief sought and the grounds mentioned in the application for judicial review: FCCR 44.13(1). If the Court is not so satisfied, it may dismiss the application: FCCR 44.12.
Despite directions orders that were made on 8 May, 2020 permitting him to do so, and despite the first respondent filing an affidavit annexing the second respondent’s written reasons on 7 July, 2020, the applicant did not amend his application or file any outline of submissions.
I have written submissions from the first respondent. The second respondent has entered a submitting appearance.
BACKGROUND
The applicant is a citizen of India. He arrived in Australia on 13 June, 2015. On arrival he held a Student (Class TU) (Subclass 573) visa. He obtained a Student (Class TU) (Subclass 500) visa on 14 November, 2017 which was valid until 4 March, 2019.
On 2 March, 2019 the applicant applied for the visa the subject of these proceedings on the basis of his enrolment in a Certificate III in Commercial Cookery. He commenced that course on 12 December, 2018 and was due to conclude it on 20 October, 2019. He was also enrolled in a Certificate IV in Commercial Cookery that was due to commence on 4 November, 2019 and conclude on 9 February, 2020. Further, he was enrolled in a Diploma of Hospitality that was due to commence on 2 March, 2020 and due to conclude on 15 November, 2020.
On 6 June, 2019 a delegate of the first respondent refused to grant the applicant the visa on the basis that he did not satisfy cl 500.212 of the Migration Regulations 1994 (Cth). That required that the applicant satisfy the first respondent that he intended genuinely to stay temporarily in Australia.
On 17 June, 2019 the applicant applied to the second respondent for review of the delegate’s decision. On 27 November, 2019 the second respondent invited the applicant to provide information that demonstrated that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. The applicant responded to that invitation by submitting a completed “Request for Student Visa Information” form.
On 11 February, 2020 the second respondent invited the applicant to attend a hearing scheduled for 20 March, 2020. On 18 March, 2020 the hearing invitation was resent. On the same day, the applicant provided a medical certificate and a copy of a medication prescription. The second respondent advised the applicant that the hearing would be proceeding by telephone.
On 20 March, 2020 the applicant appeared before the second respondent by telephone to give evidence and present arguments. He was assisted by an interpreter in the Telegu and English languages. At the conclusion of the hearing, the second respondent delivered an oral decision affirming the delegate’s decision not to grant the visa.
On 8 May, 2020 the applicant requested that the second respondent’s reasons be reduced to writing. In response, the second respondent advised that written reasons would not be provided as the applicant’s request had been made outside the 14 day period prescribed by the Migration Act 1958 (Cth).
On 19 May, 2020 a copy of the recording of the hearing was provided to the applicant. A written record of the second respondent’s decision was published on 30 June, 2020 at the applicant’s request.
The second respondent recorded that the issue before it was whether the applicant was a genuine temporary entrant and correctly stated that, in assessing that requirement, it was required to have regard to Direction 69. The second respondent recorded that, at the conclusion of the hearing, the applicant’s migration agent had asked for an adjournment to allow the applicant to provide additional documents and updated submissions, particularly relating to the earnings of the applicant’s father’s family business. The second respondent recorded that it had refused the request on the basis that:
(a)the matter had been in issue before the delegate and the applicant had been unable to provide any reasons for not providing additional information about the operation of the applicant’s father’s business; and
(b)the explanation that updated submissions were required as the first submissions had not included case references because the migration agent had not had time was not reasonable.
The second respondent found that the applicant’s family ties to India did not, of themselves, constitute a strong incentive for the applicant to return to India upon the completion of his study. In so finding, the second respondent placed significant weight on the fact that the applicant had resided in Australia for almost five years, had returned to India only twice for two short visits, maintained contact with his family electronically and had no property in his name. The second respondent found that the applicant’s family and community ties to Australia did not, of themselves, constitute a strong incentive for the applicant to remain in Australia.
The second respondent placed little weight on a letter from the applicant’s father given that the letter was dated almost one year prior to the hearing, there was no evidence that the applicant’s father’s business was presently operating and the letter did not specifically mention that the position was offered contingent upon the applicant completing the proposed set of courses.
The second respondent found that the applicant’s academic progress was not that of a genuine student. The second respondent was concerned that the applicant chose to study vocational courses when he had completed a Bachelor degree in India, had travelled to Australia with the intention of undertaking a Master’s level course, was proposing to stay in Australia until at least November, 2020 when he had changed the focus of his studies a number of times and had failed to complete a number of courses. The second respondent further did not accept the applicant’s evidence in relation to his future plans and found that the applicant had failed to explain in any meaningful detail why a Diploma of Hospitality management was required in light of the cookery and management courses already completed.
The second respondent found that the applicant’s economic circumstances in Australia presented a significant incentive for the applicant to remain in Australia. It further found that the applicant’s immigration and study history was evidence that the applicant was attempting to use the student visa system to remain in Australia for longer.
Weighing all of those matters, the second respondent was not satisfied that the applicant intended genuinely to stay in Australia temporarily. It affirmed the decision under review.
THE APPLICATION FOR REVEIW
The application specifies ten grounds of review. They are as follows (faithfully reproduced):
1. This is an application for Judicial Review under s 476 of the Migration Act 1958 in respect of a decision of the Administrative Appeals Tribunal ("the Tribunal") made on 13th November 2019 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (class TU) visa.
2. the Tribunal erred in not considering clause 500.212(a)(iv) any other relevant matter when the my circumstances demanded that the clause be invoked in my favour; Respected tribunal member continuously raising the issue Profit and loss statement and Tax returns of my father restaurant business.
3. The Delegate and Tribunal misconstrued clause 500.212 in failing to find that the applicant (I) was not a genuine applicant;
4. The Tribunal erred in not applying the facts when considering clause 500.212;
5. The tribunal doesn't have mercy and did not consider my health situation as I had bad flue during the hearing. The flu hit me before the hearing and remained after the hearing. I was very tensed as I was thinking that was COVID-19. I was on prescription drugs.
6. My health condition was totally ignored, I was having serious cough. Tribunal did not adjourned my hearing which is Jurisdictional error.
7. I had provided various evidences of my genuine intention to study. I had provided detailed answers to which tribunal asked me. I had clearly provided all the answers which can support that intention to stay in Australia is temporary only. As per me, tribunal completely neglected the issues that I faced related to my struggle , health, family and issues faced with my first partner issues making it stressful to cope with my studies( Only Masters at USQ and rest have been completed ) .
8. I have submitted all evidence at tribunal request and again I have submitted huge explanation with evidence at second request , but tribunal did not consider material. Therefore I believe that The Tribunal erred in law by not considering all the documents produced by me thereby leading to miscarriage of justice.
9. Also I believe that The Tribunal erred in law by not providing a notice under Sec 359A or 359AA as to matters which might be the reason or part of the reason according to y submitted evidence and written explanation, for affirming the decision under review.
10. I believe the AAT has made a jurisdictional error in deciding my application and I would like the Federal Circuit Court to investigate this matter and return my application to the Administrative Appeals Tribunal for reassessment if possible.
Ground one is not a proper ground of review. Nor is ground 10. They can both be disregarded.
Grounds 2, 3, 4, 7 and 8 assert in various ways that the second respondent misconstrued or misapplied cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth). They also variously assert that the second respondent failed to consider “the facts and supporting evidence provided when considering cl 500.212”.
Grounds 2, 3, 4, 7 and 8 are further particularised in the applicant’s supporting affidavit in which he contends that the second respondent erred by not considering the compelling reasons the applicant had for not satisfying cl.500.212 of the Regulations. This appears to be raised in the alternative to the assertion that “my circumstances demanded that the clause be invoked in my favour.”
On the face of the written record of the second respondent’s reasons for decision, the second respondent plainly considered the applicant’s study history and course progression, his circumstances in his home country and in Australia and his immigration history. That it should do so was entirely appropriate. The second respondent considered the information provided by the applicant. It is apparent from the applicant’s submissions to me however, that he does not agree with the way in which the second respondent weighed the various matters it considered. Nor does he agree with the second respondent’s ultimate finding. However, the applicant did not identify anything that the second respondent took into account that it should not have taken into account. Nor did he identify any matter that the second respondent did not take into account that it should have taken into account.
Further, as the first respondent’s submissions point out, the second respondent was not required to expressly make findings on every factor in Direction 69. The requirement to have regard to each of the matters mentioned in the Direction does not require the decision to be the outcome of an assessment that brought to bear each of the factors. If a decision-maker finds that a factor is not significant in the particular instance, then it need not be brought to account. No error arises from the second respondent’s failure to make findings on every factor listed in Direction 69: Jan v Minister for Home Affairs [2019] FCA 1837.
These grounds do not reveal jurisdictional error, but rather dissatisfaction with the second respondent’s decision.
Grounds 5 and 6 contend that the second respondent erred by not considering the applicant’s health condition or adjourning the hearing on that basis. However, it is apparent from the second respondent’s decision that it did have regard to the applicant’s health.
The first respondent’s submissions accurately summarise the factual background relevant to this argument:
28. Prior to the hearing, the applicant provided a number of documents in support of his application (CB 186-257), including a medical certificate dated 17 March 2020 (CB 202) which stated that the applicant “has a medical condition and will be unfit for work from 17/03/2020 to 17/03/2020.” The applicant provided a further medical certificate, dated 18 March 2020, which stated that he had “a medical condition and will be unfit for work from 18/03/2020 to 21/03/2020 inclusive”: CB 263. That medical certificate was accompanied by a prescription for “Rulide 300mg:” CB 264. On 19 March 2020, the applicant’s representative advised the second respondent that the applicant was “ok with the telephone hearing” and would attend the agent’s office for the purpose of the hearing: CB 267.
The second respondent considered the fact that the applicant had submitted a doctor’s certificate that indicated he would be “unfit for work” from 18 March to 21 March, 2020. It also considered that the medical certificate indicated that it could not be used for any Court proceedings and that the applicant had not sought an adjournment on the basis of his health.
I accept the first respondent’s submission that it was for the second respondent to evaluate the ability of the applicant to participate in the hearing and the fact that the second respondent was aware of the potential health difficulties faced by the applicant and continued with the hearing is indicative that the applicant was not denied the opportunity to participate in the hearing.
There is no evidence to suggest that the applicant in fact made an adjournment request or that he was otherwise unable to give evidence, present arguments and answer questions at the hearing. To the extent that he now argues that he was denied a “real and meaningful” opportunity to participate in the hearing, I reject the submission.
These grounds reveal no jurisdictional error.
Ground 9 asserts that the second respondent failed to put information to the applicant pursuant to ss.359A and 359AA of the Act. Having regard to the second respondent’s reasons, this argument cannot be accepted. It is entirely devoid of merit.
CONCLUSION
The application does not raise an arguable case for the relief claimed and must be dismissed pursuant to FCCR 44.12 of the Rules with costs in the sum prescribed by schedule 1 of the FCCR. I so order.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 17 December, 2020 Associate: TN
Dated: 17 December 2020
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