Muker v Minister for Immigration

[2016] FCCA 204

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUKER v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 204

Catchwords:
MIGRATION – Migration Review Tribunal – visa – student visa – merits argument not establishing jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.65, 499

Migration Regulations 1994 (Cth), cl.572.223(1)(a) of Schedule 2

Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: ANKUSH MUKER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 475 of 2014

Judgment of: Judge Heffernan

Hearing date: 3 February 2016

Date of Last Submission: 3 February 2016

Delivered at: Adelaide

Delivered on: 18 February 2016

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application filed 23 December 2014 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 475 of 2014

ANKUSH MUKER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the decision of the Migration Review Tribunal (‘the Tribunal’), dated 10 December 2014, in which it affirmed a decision of the delegate of the Minister to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

Background

1. The applicant, Mr Ankush Muker, arrived in Australia in January 2010 on a student visa.  Since that time he has completed a Diploma of Business, a Certificate III in Automotive Specialist and a Diploma of Automotive Technology.  His reason for applying for a further student visa is so that he can undertake an Advanced Diploma of Management, a Diploma of Marketing and an Advanced Diploma of Marketing.

2. Mr Muker applied to the Department of Immigration for a subclass 572 visa on 30 December 2013. This was refused by a delegate of the Minister on 28 May 2014. The delegate was not satisfied that the applicant met the requirements of cl.572.223(1)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). The delegate advised the applicant on 28 May 2014 that his application for a student visa had been refused.

3. The applicant applied to the Tribunal for a review of the delegate’s decision and as noted above the decision of the delegate was affirmed.  

4. The applicant applied to this Court for judicial review on 23 December 2014.

5. The ground identified by the applicant in his application is lengthy and in narrative form.  Rather than attempt to summarise it, I include it verbatim below:

   “Tribunal member refused my case stating that he is not satisfied that I am genuine student and I do not satisfy subclass cl.572.223(1)(a). I have been a genuine student in Australia since my arrival that’s the reason I was able to complete my studies in Automotive and business. Tribunal officer stated in his decision that I applied for or undertook 4 unrelated courses, Information technology, Automotive, Business/Management and Marketing. I had explained member that I withdrew from IT course as I found it very difficult. Automotive, Business/Management and marketing are closely related subjects. When I work in Automotive industry I would require management and marketing knowledge. I had clearly said that I will be manager in Automotive industry or might help my parents in the business. In both the cases I would require management/business and marketing knowledge. Member failed to put weight on the fact that a Manager has to perform various duties in business including management and marketing along with technical work hence made and “Jurisdictional error in his decession [sic].”

6. In so far as the applicant argues that the Tribunal failed to give certain aspects of the evidence sufficient weight, his argument cannot succeed.  The weight to be given to any piece of evidence is clearly a matter for the Tribunal and not this Court.[1]

   [1]     Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

7. In order to succeed in his application for a student visa, the applicant had to satisfy the Minister that he met the requirements of cl.572.223(1)(a) of Schedule 2 of the Regulations. That clause states as follows:

   “(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

   …”

8. In considering the above criteria, it was necessary for the Tribunal to have regard to Direction No. 53 Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. Pursuant to that direction, the Tribunal had to have regard to a number of factors including:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the courses to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa, or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision-maker, including information that may be either beneficial or unfavourable to the applicant.

Tribunal Hearing

1. The applicant attended at the Tribunal hearing on 8 December 2014 and gave evidence in support of his application.

2. When asked by the Tribunal about the reason for him wanting to study the most recent courses, he gave a detailed answer.  That answer included that he had initially found a Masters in Information Technology too difficult for him and so for that reason he had focused on Diploma courses.  He believed the automotive industry was a growing industry.  Having completed his automotive industry qualification, his father wanted him to return home, but the applicant believed that he required more skills.  He said that Indian tradition dictates that as the eldest son he needs to take responsibility for his parents and grandparents and that he has a duty to “fulfil his parents’ dreams”.[2]  He claims in effect that it is only by studying for the latest courses that he will be able to attain sufficient skills to help in expanding his father’s business.  It is for this reason that he is now focusing on management and marketing courses. 

   [2]     Court Book (‘CB’) p 127.

3. The Tribunal noted that the applicant’s father runs a business in Chandigarh which is a men’s clothing store.  His father sells men’s wear, as well as manufacturing garments.  During the course of his evidence at the Tribunal, the applicant repeated, on a number of occasions, that he had a family duty as the eldest son to assist in his father’s business, and this is why he needed to undertake the further courses of study.  The Tribunal made findings of credit against the applicant.  Having considered his presentation and the nature of the answers he gave, it concluded that there was an element of rehearsal in his evidence that can only have been with the intention of enhancing the effect that it had on the Tribunal.[3]  The finding of the Tribunal was clearly based on both the content of the claims made by the applicant and an assessment of his demeanour.

   [3]     CB p 127-128.

4. The Tribunal considered the manner in which he gave his evidence and the claims he made to it, in comparison to his earlier statement to the delegate that his long-term goal was to be a successful manager in the automotive industry, and that he believed his new studies would give him a competitive edge in securing employment in India. The Tribunal drew an adverse inference as to the applicant’s version of events. The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia only temporarily. For this reason, the applicant did not meet cl.572.223(1)(a) as satisfaction that he held this genuine intention was an essential requirement. For this reason, the Tribunal affirmed the decision of the delegate.

Submissions

1. The applicant attended the hearing of this matter unrepresented and with the assistance of an interpreter.  As it transpired, the interpreter was essentially only as a ‘safety net’ and the applicant spoke English throughout the hearing.  He confirmed in his brief oral submissions that the matters raised in his ground of application were really the only matters he wished to raise before this Court.

2. As the counsel for the first respondent noted, the applicant seems to have focused his criticism of the finding of the Tribunal on the fact that the Tribunal referred to the latest courses as being unrelated to his earlier courses.  For this reason the applicant focused his grounds on the importance of marketing and management experience to a person pursuing either or both a career in the automotive industry or his father’s clothing store. 

3. The first respondent submits that this criticism fails to properly understand the basis upon which the Tribunal made its decision.  The first respondent submits that the Tribunal made findings of credit against the applicant based on the inconsistencies between his stated reasons for apparently wanting to take on these further studies.  When the applicant appeared before the delegate, the effect of his evidence pointed towards the need to undertake these further studies as a means of enhancing his career in the automotive industry.  When the applicant appeared before the Tribunal, the emphasis of his evidence was that he needed to help fulfil his parent’s dreams and had family responsibilities that required him to undertake these further studies.  It was the inconsistency between those positions considered in light of his previous history of study in this country, the first respondent submits, that caused the Tribunal to conclude that the applicant was not genuinely intending to stay in Australia temporarily. 

4. The first respondent submits that the comment in the decision record of the Tribunal about the somewhat disparate nature of the courses the applicant has studied, and proposes to study, was nothing more than an observation and not the crux of the Tribunal’s reasoning.  If anything, it simply lent some support to the conclusion the Tribunal had reached as to the credibility of the applicant’s version, but that credit finding was not dependant on the view taken by the Tribunal that the proposed courses were unrelated to his previous studies.  I accept this submission.  The Tribunal considered the claims and the evidence of the applicant having regard to the matters set out in Direction No. 53, and having done so was not satisfied that the applicant had a genuine intention to stay in Australia only temporarily.  This conclusion was open to it on the facts and was not illogical or irrational.

5. The grounds advanced by the applicant do not establish any basis of jurisdictional error.  Essentially the applicant disagrees with the finding of the Tribunal and has attempted before this Court to re-agitate the facts.  This is clearly a merits based argument and not an appropriate matter for judicial review.[4]

   [4]     NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10.

6. I make the orders set out at the beginning of these reasons.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 18 February 2016