Mehmeti v Minister for Immigration

[2016] FCCA 1057

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEHMETI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1057

Catchwords:
MIGRATION – Visa – student visa – whether genuine applicant for entry and stay as a student – whether Tribunal imposed an additional mandatory criterion of ‘sole’ or ‘primary’ purpose.

Legislation:

Migration Act 1958 (Cth), ss.359A(1)(a), 476 & Direction No. 53 of s.499

Migration Regulations 1994 (Cth), cl.572.223

Cases cited:
SZTGV v Minister for Immigration & Border Protection [2015] FCAFC 3

Applicant: ARBANA MEHMETI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 151 of 2015

Judgment of: Judge Heffernan

Hearing date: 18 February 2016

Date of Last Submission: 18 February 2016

Delivered at: Adelaide

Delivered on: 10 May 2016

REPRESENTATION

Solicitors for the Applicant: Ms J McGrath for McDonald Steed McGrath Lawyers

Solicitors for the Respondents: Ms C Stokes for the Australian Government Solicitors

ORDERS

1. The application for judicial review is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 151 of 2015

ARBANA MEHMETI

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’) in relation to a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) dated 31 March 2015. That decision affirmed the earlier decision of a delegate of the Minister not to grant the applicant a Student (Temporary)(Class TU) subclass 572 visa (‘the visa’).

2. The applicant raises three grounds of application as follows:

   “1.The Second Respondent committed jurisdictional error in that it made an error of law in finding that clause 572.223(1)(a) was not met.

   PARTICULARS

   1.1The Second Respondent was in error in finding that to satisfy clause 572.223(1)(a) the study had to be the primary motivation for arriving and staying in Australia.

   1.2The Second Respondent was in error in finding that the fact that the Applicant had not studied yet (given that the Applicant did not have the right to study for more than three months) was relevant to a finding that clause 572.223(1)(a) was not met.

   2.The First Respondent committed a jurisdictional error in that it asked itself the wrong question in determining whether the Applicant was able to satisfy Clause 572.223(1)(a).

   PARTICULARS

   2.1The Second Respondent asked itself the wrong question in that it made a determination as to whether study was the Applicant’s sole motivation in coming to Australia instead of asking itself the question whether the Applicant was a genuine Applicant for entry and stay as a Student.

   3.The Second Respondent committed jurisdictional error in that it did not comply with s 359A(1)(a) of the Migration Act (1958) (The Act).

   PARTICULARS

   3.1The Second Respondent did not put to the application (sic) that in its view the purpose of study in Australia had to be the “sole purpose” in making the application.”

3. The applicant relies on the affidavits of Ms Jane Louise McGrath, dated 28 April 2015 and 20 January 2016.  The second of those affidavits annexes the transcript of the Tribunal hearing.  The applicant also relies on the materials contained in the Court Book.  The first respondent also relies on the materials in the Court Book.

Background

1. The applicant, Ms Mehmeti, arrived in Australia on 3 August 2012 on a tourist visa which was valid for a period of three months.  In September of 2012, she applied for the student visa.[1]  Ms Mehmeti has three children.  The father of those children lives in Australia.  He is Ms Mehmeti’s husband, but they were estranged at the time she arrived in Australia.  They have since re-united.  She brought her children to Australia ostensibly for the purpose of seeing their father, who they had not seen for a period of two years.[2]The applicant was born in Albania, but is a citizen of Italy and travelled to Australia on an Italian passport.  The applicant proposed to study a Diploma of Hospitality.[3]  She had previously obtained a Certificate as a result of having completed a course as a cook in Albania in March 2010.  In the statement accompanying her initial application for the visa, the applicant stated that she wanted to study hospitality in Australia, because cooking was her passion and she desired to further her study at a school which taught cooking in the English language.[4]  In her initial statement, the applicant indicated that another reason for studying cooking in Australia, rather than in Italy, was that it would enable her children to continue their relationship with their father, and that this would also be of benefit to her, as she concentrated on her studies in this country.[5]

   [1]     Court Book (‘CB’) p 114.

   [2]     CB p 115.

   [3]     CB p 26.

   [4]     CB p 24.

   [5]     CB p 24.

Tribunal hearing

1. Ms Mehmeti attended before the Tribunal on 11 August 2014 with the assistance of her solicitor Ms McGrath.  She gave evidence in support of her application.  At the outset she was asked by the Tribunal why she decided to study in Australia.  She gave the frank answer that she had travelled to Australia to enable her children to see their father, that they wished to remain close to their father, and for that reason she determined that she should “follow my own road in this regard”.[6]  She also indicated that there was a benefit to her in being able to study English here.  Having established this, the Tribunal then focused on what Ms Mehmeti had been doing since her application of 6 September 2012.  The effect of the applicant’s answers was that she had not commenced studying either English or hospitality because she believed she was not permitted to study given that she had not yet obtained a student visa.  The Tribunal member informed her that, “plenty of people on bridging visas study”.[7]  This elicited the response from the applicant that she was not aware of that.[8]  The Tribunal member persisted with questioning about what efforts Ms Mehmeti had made to study in the preceding 23 months, and indicated that the fact that she had not commenced studies might entitle him to take the view that she was not a genuine applicant for entry and stay as a student.[9]  The Tribunal member explained to the applicant that his reason for focusing on this, was that it was necessary for him to understand why she had applied for a student visa.  The applicant pointed to the fact that she had recently obtained an offer of enrolment in both English and hospitality courses.[10]  The Tribunal member asked the applicant whether her reason for doing so was simply to bolster her application at the Tribunal hearing.[11]

   [6]     Transcript p 6, lines 15-26.

   [7]     Transcript p 9, line 27.

   [8]     Transcript p 9, line 30.

   [9]     Transcript p 10, lines 1-12.

   [10]    Transcript p 11, lines 7-8.

   [11]    Transcript p 11, lines 10-12.

2. Ms Mehmeti told the Tribunal that she had come to Australia because her children had suffered without their father and she wanted them to have an opportunity to be with him.  Her motive was to give them the benefit of having a relationship with both parents.  She then decided to study.[12]  She did not rule out the possibility of wanting to reside in Australia in the longer term, but “in the meantime, I would wish to actually study, so that I could develop myself and get on with what I want to do as well.”[13]

   [12]    Transcript pp 14-15.

   [13]    Transcript p 15, lines 24-26.

3. Ms Mehmeti confirmed that she had never applied for a partner visa.[14] 

   [14]    Transcript p 17, line 30 – p 19, line 1.

4. The Tribunal identified that it was necessary for the applicant to meet the time of decision criterion in cl.572.223 of the Migration Regulations 1994 (Cth) (‘the Regulations’). It set out the terms of cl.572.223(1)(a) which 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.”

5. The Tribunal noted that it was required to have regard to Direction No. 53, Assessing the Genuine Temporary Entrant Criterion for Student Visa Application, which has been made under s.499 of the Act. It summarised the specified factor that the Direction required it to have regard to.[15]  In doing so, it specifically noted that the factors in Direction No. 53 were not a check list and are to be used as a guide only when considering the applicant’s circumstances as a whole.

   [15] CB p 115 at [9].

6. The Tribunal found that the applicant had a strong motivation to travel to Australia so that her children could be reunited with their father, with whom she has now re-partnered.  It described the motivation to study once she had arrived in Australia as a “secondary motivation”.[16]  It found that the failure to have undertaken any English language courses, or any course of study, since she had arrived in Australia, confirms its finding that the desire to study was a secondary purpose.  Having considered the applicant’s evidence and her past work and study history, the Tribunal was not satisfied that she had actually worked in a kitchen since 1998.[17]  The Tribunal considered the written offer of employment at a pizza restaurant in Italy, but gave little weight to that job offer, considering there was no evidence that the applicant had ever worked in a pizza restaurant, and the offer seemed to have been made after she had dined at the restaurant with her family on a single occasion and informed them of her desire to study in Australia.[18]

   [16] CB p 116 at [21].

   [17] CB p 117 at [25].

   [18] CB p 118 at [26].

7. At paragraph 29 of the Decision Record, the Tribunal stated as follows:

   “The applicant arrived in Australia on a tourist visa with her children.  From the evidence before it the tribunal considers that her primary motivation was to provide the children with an opportunity to reunite with their father.  The evidence does not satisfy the tribunal that the applicant intended to remain in Australia as a tourist only for a short period.  She referred to the children who had “suffered” without their father.  She said that she asked about to study that “in an attempt to settle everything in our story family”.  The applicant is now reunited with her husband.  As set out above she has not provided any details as to his visa status, employment or intentions in Australia.  It is not apparent for example whether he has a permanent visa or a temporary visa, whether he was employed or holds a visa for some other purpose.  The applicant has not provided that information.  Nor does the applicant’s evidence satisfy the tribunal that the applicant in fact intends to initially obtain English language proficiency such that she can's (sic) pursue studies in a reasonable period for the purpose of returning to Italy and working as a cook.  Rather, the tribunal is satisfied and finds that the primary motivation for the applicant’s arrival in Australia was for the purpose of reuniting her children with their father.”

8. Having made those findings, the Tribunal found that the fact that the applicant had reunited with her husband was a “strongly motivating factor for her to remain in Australia”.[19]  In reaching that conclusion, the Tribunal placed weight on the fact that the applicant had made no attempt to obtain study rights and had not attempted to study at all under her bridging visa, which permitted her to study for a period of up to three months.  In all of the circumstances, the Tribunal concluded that taking into account the significant amount of time she had already spent in Australia, her closer ties were with this country, rather than Italy, particularly taking into account the benefit to her children of having an ongoing relationship with their father.[20] On that basis, the Tribunal was not satisfied that the applicant intended to genuinely stay in Australia temporarily, and for that reason did not satisfy criterion in cl.572.223(1)(a).

   [19] CB p 118 at [30].

   [20]    CB p 119.

Applicant’s submissions

1. The applicant submits that the Tribunal fell into jurisdictional error because it proceeded on the basis that in order for the applicant to meet cl.572.223(1)(a), the intention to study had to be the sole or primary motivation for making the application for a study visa.

2. She says that this was an error because the test was whether Ms Mehmeti was a genuine applicant for entry and stay in Australia as a student having regard to the criteria set out in cl.572.223(1)(a). It was submitted that it was entirely possible for the applicant to be a genuine student in circumstances when study was one of the motivations, but not the sole or primary motivation for making an application for a student visa. It is submitted that there is no authority for the proposition that a person cannot be a genuine applicant for entry and stay as a student if study is not the sole or primary reason for the application. It was submitted that this was not simply a question of the Tribunal making a factual finding that it then applied to cl.572.223(1)(a). It was submitted in effect that the Tribunal had imposed an essential criterion over and above what was required by the regulation. For those reasons, it was submitted that the Tribunal had made an error of law in finding that criterion was not met (ground one) and that the Tribunal had fallen into error because it had asked itself the wrong question (ground two). It was also submitted that the Tribunal failed to comply with s.359A(1)(a) of the Act by not putting the applicant on notice that “sole purpose” was an essential criterion (ground three).

3. In response to a submission made by the first respondent as to the effect of SZTGV v Minister for Immigration & Border Protection[21] the applicant says that that decision is not authority for the proposition that the Tribunal does not have to comply with the requirement that it give clear particulars of any information that would be the reason, or part of the reason, for affirming the decision under review.  Rather, it contends that it will be a question of fact in each case. 

   [21] [2015] FCAFC 3.

First respondent’s submissions

1. The first respondent submitted that there was no error of law on the part of the Tribunal in finding that cl.572.223(1)(a) was not met. When the particulars are considered, ground one really amounts to a complaint as to a finding of fact and for that reason is nothing more than an invitation to conduct an impermissible merits review. It submits that there was no error in the approach taken by the Tribunal, and that the finding was that the applicant was not a genuine student. In reaching this finding, it submitted that the Tribunal applied the terms of the clause to the facts as found, which included that study was not the primary motivation for the application. The question of the applicant’s motivation was, it submits, a relevant consideration when determining whether she intended genuinely to stay in Australia. The Tribunal was obliged to consider it under Direction No. 53, paragraph 8, which required weight to be given to circumstances which suggests that the visa is intended primarily for maintaining residence in Australia. It submitted that it was open to consider this under cl.572.223(1)(a)(i) and (iv).

2. For this reason, it was submitted that it could hardly be regarded as an irrelevant consideration.

3. As to ground number two, the first respondent submits that it is predicated on a misreading of the Tribunal’s decision. The ground assumes that the Tribunal found that the applicant could only satisfy cl.572.223(1)(a) if study was the “sole motivation”.  The Tribunal made no such finding it said, and in any event, it spoke in terms of primary motivation.  The finding that study was not the primary motivation was, it submitted, simply a factor to be taken into account in considering whether she was a genuine applicant for entry and stay in Australia as a student.

4. It submitted that the Tribunal also considered, and gave weight to, other evidence, for example, the failure to undertake any English language course or any study at all since her arrival in Australia, and the fact that she did not appear to have worked in a kitchen since 1998, together with the slight weight it gave to the written offer of employment.  It submits that this itself suggests that it did not regard the sole or primary purpose as being determinative, rather that it was a factor to be taken into account with all other factors in considering whether the applicant satisfied the criterion.  It submitted that the Tribunal was not required to put “the sole purpose” issue to the applicant, and that in any event it did not make that finding. 

Consideration

1. When the transcript of the Tribunal hearing is considered, it is clear that the Tribunal member did place significant emphasis on the family reunion aspect of the applicant’s motivation for travel to Australia.

2. The applicant is correct to submit that the test to be applied to her circumstances was whether she was a genuine applicant for entry and stay as a student because of those factors set out in cl.572.223(1)(a)(i) to (iv) inclusive. Those factors do not state that in considering the “genuine” state of an application for entry and stay as a student, that the sole or primary motivation had to be an intention to undertake study. Of course, her genuine intention to stay in Australia only temporarily was an essential part of the criterion. For this reason, it was appropriate for the Tribunal to focus on her circumstances both in Italy and Australia. This included the present status of her relationship with her husband and her understandable desire that her children have the benefit of a meaningful relationship with their father. If it had failed to consider those aspects of the applicant’s circumstances it would have been ignoring obvious matters to which it was required to have regard under cl.572.223 and Direction No. 53.

3. Had the Tribunal proceeded on the basis that there was a “sole or primary purpose” requirement that had to be satisfied in order to meet the criterion in cl.572.223, it would have been imposing an essential criterion that does not exist. To do so would be to fall into jurisdictional error of the type identified by the applicant. I am not satisfied that this is what the Tribunal did.

4. In using the terms “primary motivation” and “secondary motivation” to assess the evidence and circumstances of the applicant, the Tribunal was identifying the approach it took to its fact finding task.  In weighing up the evidence for the purpose of determining whether the applicant was a genuine applicant for entry and stay as a student, it made findings and placed weight on those factors it considered relevant to her having made the application.  It is difficult to see how it could have conducted its task without an evaluation of the relative strengths of her reasons for being here.  It was in that context and for that purpose only that it reasoned in terms of “primary” and “secondary” motives.

5. In doing so, it did not misapply or misinterpret the criterion in cl.572.223(1)(a). It did not proceed on the basis that study had to be the primary motivation for arriving and staying in Australia. As the first respondent submits, the motives of the applicant were factors taken into consideration with other matters in concluding that the applicant did not intend to stay in Australia temporarily. This finding was clearly open to it on the evidence. In considering the circumstances of the applicant, including the length of time she had been in Australia, the Tribunal did not have regard to an irrelevant consideration when taking into account that the applicant had not yet undertaken, or attempted to undertake, study of any sort since her arrival. This was simply one relevant matter taken into account with others. I am not satisfied that the Tribunal asked itself the wrong question. Jurisdictional error has not been established and I dismiss grounds one and two.

1. The contention in ground three is contingent on the applicant establishing the error identified in grounds one and two.  It follows that as I have concluded the Tribunal did not make the error complained of in grounds one and two, I do not accept that the Tribunal failed to put to the applicant that the purpose of study in Australia had to be the “sole purpose” in making the application.  It did not proceed on that basis and accordingly this ground must fail.

2. I dismiss the application and I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  10 May 2016