NAMILAKONDA v Minister for Immigration
[2016] FCCA 2931
•24 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAMILAKONDA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2931 |
| Catchwords: MIGRATION – Student Temporary (Class TU) visa – Tribunal finding that applicant commenced then did not complete a collection of courses – whether studies were genuine – Ministerial Direction 53 – no error by Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.395A, 359AA, 424AA |
| Cases cited: Craig v State of South Australia (1995) 184 CLR 163 MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032 Singh v Minister for Immigration and Border Protection [2016] FCA 74 |
| Applicant: | DEVARAJU NAMILAKONDA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1162 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 24 October 2016 |
| Date of Last Submission: | 24 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 24 October 2016 |
REPRESENTATION
| Applicant in person |
| Solicitors for the First Respondent: | Mr A. Cunynghame of Sparke Helmore |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
The application filed on 13 June 2014 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1162 of 2014
| DEVARAJU NAMILAKONDA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Introduction
On 16 May 2014, the Migration Review Tribunal as it then was, now the Administrative Appeals Tribunal (“the Tribunal”), affirmed a decision of the delegate to refuse the applicant’s application for a Student (Temporary) (Class TU) visa.[1]
[1] Court Book filed 16 September 2014 at pp.157-165.
On 21 August 2013 the applicant applied for a review of the delegate’s decision.[2] On 6 March 2014 the applicant was invited to attend a hearing before the Tribunal.[3] On 9 April 2014 the applicant provided certain documents to the Tribunal and the following day on
10 April 2014 the applicant attended a hearing before the Tribunal,[4] during which, in some little detail, the Tribunal canvassed with the applicant the basis of his application to review the delegate’s decision and other matters.
[2] Court Book filed 16 September 2014 at pp.47-57.
[3] Court Book filed 16 September 2014 at pp.67-70.
[4] Court Book filed 16 September 2014 at pp.149-152.
Specifically, the Tribunal canvassed with the applicant the applicant’s study history, the gaps in his study and the applicant’s explanation for those gaps. The Tribunal also canvassed with the applicant his stated intention to study in the building and construction industry, which appeared to be inconsistent with his stated desire to return to India to commence his own printing business. The Tribunal canvassed with the applicant its concern of what the Tribunal expressed was a seemingly apparent pattern of studying relatively inexpensive, unrelated courses that gave rise to the impression that he was not a genuine student but rather was using a student visa program to achieve ongoing residence.
The Tribunal also canvassed with the applicant his response to questions that pursued that line of inquiry. The Tribunal raised, at a preliminary level, its concerns that the applicant may not have been giving the Tribunal evidence that demonstrated the genuineness of his studying. The Tribunal allowed the applicant further time to respond to its concerns as to whether the applicant was, in fact, and in law,
a genuine temporary student. In response on 22 April 2014 the applicant provided the Tribunal with further documents in support of his application,[5] those documents giving some voice to the applicant’s contentions of the genuineness of his enrolment history, the gaps in his study and his ability to comply with the financial requirements of the visa.
[5] Court Book filed 16 September 2014 at pp.72-138.
Ultimately, the Tribunal refused to interfere with the decision of the delegate, and instead affirmed the delegate’s decision. Relevantly,
the Tribunal identified that the pertinent issue in the case was compliance with the criteria proscribed in cl.572.223 of Sch.2 of the Migration Regulations 1994 (Cth) (“the Regulations”). Clause 572.223 of Sch.2 of the Regulations was to be applied in conformity with Ministerial Direction 53 – ‘Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications’.
The Tribunal indicated that it had concerns regarding the genuineness of the applicant’s entry and his stay. The Tribunal recorded that it accepted certain information given by the applicant, especially that concerning the health of members of the applicant’s family, but the Tribunal recorded that the applicant’s evidence did not adequately explain why the applicant had not studied since August 2011, nor did it explain an 11-month gap in the applicant’s study. The Tribunal identified that it was unable to reconcile the information given by the applicant in which he identified his intention to start a printing business with his intended course in the building and construction industry, a matter over which the Tribunal expressed adverse comments concerning the applicant’s explanation.
The Tribunal, more than once, expressed its concerns about the genuineness of the applicant’s entry and staying in the Commonwealth as a student and whether the applicant was, in truth, using the student migration program to achieve residency in Australia. The Tribunal concluded that it was not satisfied that the applicant intended to genuinely stay in Australia temporarily and therefore did not meet the elements of cl.572.223(1)(a) of Sch.2 of the Regulations with the consequence that it affirmed the decision of the delegate.
Application in this Court
The applicant relied on three grounds. I have them set out verbatim -
1. The Tribunals (sic) Decision is affected by jurisdictional error.
2. The Tribunal did not take account of relevant considerations and took account of irrelevant consideration (sic).
3. The Tribunal did not comply with s.424AA of the Migration Act 1958.[6]
[6] Application filed 13 June 2014 at p.3.
Nowhere has the applicant indicated in what way he sought to develop his contentions in respect of any of those grounds. Before me,
Mr A. Cunynghame, the solicitor for the Minister, contended that grounds 1 and 2 were essentially meaningless in the absence of proper particulars. I agree. They say next to nothing. In the third ground,
the Minister submitted that the Tribunal properly complied with its obligations under s.395A of the Migration Act 1958 (Cth) (“the Act”), and in particular, it put to the applicant for comment at the hearing adverse information as it was required to do.
To that end, Mr Cunynghame submitted that the applicant was provided with an opportunity to seek additional time to comment upon or respond to any concerns raised by the Tribunal. Mr Cunynghame submitted that in the absence of any details about his contentions in respect of ground 3, it was impossible to understand the facts, matters, circumstances and things that go to make up the contention that the Tribunal did not comply with ss.359AA or 424AA of the Act.
There is a degree of force in Mr Cunynghame’s submissions. Let me turn to the steps that the Tribunal did, in fact, take. The Tribunal correctly identified that the requirements of cl.572.223(1) of Sch.2 of the Regulations needed to be satisfied for the applicant to obtain the visa. The Tribunal correctly identified the application of
Ministerial Direction 53 and that, while not a checklist, provided a useful guide about the things to which the Tribunal needed to be satisfied in an assessment of whether the visa ought to have been granted in the circumstances of this case.
Cases such as MZYQU v Minister for Immigration and Citizenship[7] require the Tribunal to engage in an active intellectual process in assessing the elements of cl.572.223 of Sch.2 of the Regulations and the elements of Ministerial Direction 53. However, on behalf of the Minister, it was submitted that the absence of some particular matter from a statement of reasons did not, in and of itself, give rise to an inference that a particular matter was not considered.
[7] [2012] FCA 1032 at [80].
In support of that proposition, Mr Cunynghame relied on Minister for Immigration and Multicultural Affairs v Yusuf[8] (“Yusuf”). Of course, it is necessary to observe that a decision-maker is not required to specifically mention every factor in Ministerial Direction 53 as being relevant or determinative of its conclusion, but rather the Tribunal is required to take into account, as a whole, the import of that Direction or the matters that are regarded as relevant. To that end,
the observations of the Full Court in Singh v Minister for Immigration and Border Protection[9] are pertinent.
[8] (2001) 206 CLR 323 at [5], [37] and [69].
[9] [2016] FCA 74.
Ultimately, as the observations of the High Court of Australia in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[10] indicate, it is a matter for the decision-maker to determine the weight to be given to any particular matter, and no error arises merely because the decision-maker has determined not to give weight to some particular matter. It seems to me that, in the circumstances of this case, the Tribunal did, in fact, have regard to the matters identified in Ministerial Direction 53, especially evidence before it in relation to the applicant’s circumstances, his immigration history and other matters it considered relevant in reaching the conclusion that it was not persuaded that the applicant did not genuinely intend to stay in Australia temporarily.
[10] (1986) 162 CLR 24, 39-41.
It seems to me that the applicant was unable to demonstrate the existence of jurisdictional error. To the contrary, the Tribunal made findings that squarely addressed matters open to it. Let me catalogue them –
a)first, the Tribunal took into account the applicant’s circumstances in Australia and, in particular, his enrolment and study history;
b)second, the Tribunal took into account gaps in the applicant’s study and whether he was using the student visa program to maintain ongoing residence;
c)third, the Tribunal took into account the applicant’s statement of purposes and his intended course of study;
d)fourth, the Tribunal took into account the applicant’s career and study progression and the value of the proposed course to his future;
e)fifth, the Tribunal took into account the applicant’s circumstances in his own country; and
f)sixth, the Tribunal took into account the applicant’s intentions to return to India after his studies and the economic incentives available to the applicant in that regard.
All of those matters were open to the Tribunal to take into account.
In addition, the Tribunal highlighted to the applicant at the hearing that the issue of whether he was a genuine temporary entrant in Australia as a student was a very significant, if not determinative, issue of the review. The Tribunal gave the applicant an opportunity to produce further information about it, in circumstances where the Tribunal had highlighted the need for the applicant to demonstrate to the Tribunal that the applicant intended to genuinely stay in Australia temporarily.
That was the thrust of cl.572.223(1)(a) of Sch.2 of the Regulations.
It seems to me that not only was the applicant on notice of those issues, but the Tribunal had told him that it was concerned about his evidence in respect of those issues. To my mind, the Tribunal made no error,
still less did it make a jurisdictional error of the sort canvassed in such cases as Craig v State of South Australia[11] or Yusuf. It seems to me that the Tribunal did as it was required to do by the legislation. As it happens, its decision was adverse to the applicant.
[11] (1995) 184 CLR 163.
Today before me, when I asked the applicant whether he wanted to urge any particular proposition of fact or law turning on the hearing of this application, he said that he wanted one more chance to study.
In my opinion, that is not jurisdictional error such as to warrant intervention in the decision by the delegate or the Tribunal as was the conclusion of this case. I dismiss the application made in this proceeding.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 14 November 2016
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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Jurisdiction
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