Neelakandan v Minister for Immigration

[2016] FCCA 2958

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEELAKANDAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2958

Catchwords:
MIGRATION – Review of a decision of the Administrative Appeals Tribunal  – application for a Student (Temporary) (Class TU) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360

Migration Regulations 1994 (Cth), cl.572.223
Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: RAGHURAMAN NEELAKANDAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINSTRATIVE APPEALS TRIBUNAL

File Number: MLG 167 of 2016

Judgment of: Judge Hartnett

Hearing date: 21 October 2016

Delivered at: Melbourne

Delivered on: 21 October 2016

REPRESENTATION

The Applicant: In Person

Solicitor Advocate for the Respondents: Ms Saunders

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 167 of 2016

RAGHURAMAN NEELAKANDAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINSTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed on 1 February 2016 seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 7 January 2016.  The Tribunal, in that decision, affirmed a decision by a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa (“the visa”). 

2. The grounds of application are as follows:-

   “I am not satisfied with the decision of MRT/AAT. 

   So, I want to apply in Federal Circuit Court for the right review of my application.

   I came to Australia in 2008 as a student.

   While commencing my studies, I was unable to score good in the studies.

   After trying various courses, I quited studying but for running a new business I and my wife decided, that my wife will study and she will help setting up my business.

   After her study, I received a job offer in the field of automotive.

   I started studying about automotive and came to know that, to do the job, I need to study more about it.

   So, I applied for student visa, which was refused.

   I think DIBP did not consider my points and refused my visa.

   MRT also refused my visa without considering my evidence.

   So, I want to apply in Federal Circuit Court for the right review of my application.”

3. As can be seen from the above grounds, what essentially the Applicant seeks is an impermissible merits review of the decision of the Tribunal.  The only legitimate ground of review as stated above is that the Tribunal refused the Applicant the visa without considering his evidence.  No particularisation of that ground has been provided by the Applicant, albeit that the Applicant was given an opportunity to amend his application by orders made by Registrar Buljan on 22 June 2016. 

4. The Applicant otherwise relies upon an affidavit affirmed by him on

   
   

   1 February 2016. It annexes the Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal. 

5. The First Respondent opposes the making of orders as sought in the application and seeks costs in the event of dismissal of the application.  The First Respondent asserts there is no arguable case for the relief sought (in response filed 15 February 2016). 

6. On 22 June 2016, Registrar Buljan made orders, which included that the Applicant file and serve written submissions and that the First Respondent do likewise.  The Applicant has failed to file any written submissions.  The First Respondent has filed submissions which are dated 17 August 2016 and relies upon same.  There is also before the Court the evidence as contained in the court book filed 16 March 2016. 

7. The Applicant was given an opportunity, on the hearing of the matter this day, to make oral submissions.  The submissions he did make, did not expand upon his application in any way or take his matter beyond the grounds as set out in his application.

Background

1. The Applicant was initially granted a Student (Class TU) (Subclass 573) visa offshore on 2 September 2008, which was valid until 15 March 2010. He subsequently arrived in Australia on 24 October 2008. Departmental records indicate that since the Applicant’s initial arrival onshore, he has held either a student, a student dependant or an associated bridging visa.  The Provider Registration and International Student Management System (PRISMS) records, of the Department of Education and Training, show that the Applicant has not completed any courses since arriving in Australia and that the Applicant was reported for unsatisfactory course progress on 12 August 2010 by his education provider, Brighton Educational Services.

2. The Applicant applied for the visa on 5 May 2014. Clause 572.223 of the Migration Regulations 1994 (Cth) (‘the Regulations’) sets out the criterion for the grant of the visa to be satisfied by the Applicant was 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 

   (b) the applicant meets the requirements of subclause (2).

   (2) An applicant meets the requirements of this subclause if:

   (a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

   (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii) any other relevant matter; and

   (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.”

3. On 7 May 2014, an email was forwarded to the Applicant inviting him to provide a statement of purpose and documentation in relation to genuine temporary entrant criteria including evidence of financial capacity, evidence of English ability, evidence of overseas student health cover, a copy of his passport and the results of his required health examinations.  A time period of 28 days was given for response. 

   
   

   In that correspondence, the Applicant was invited to provide (including supportive documentary evidence) an explanation or comment regarding:

   a)his reasons for choosing to undertake the course of study specified in his application;

   b)the relevance of his course of studies to his academic and/or employment background;

   c)the relevance of the course to his future career-educational plans;

   d)his reasons to study these courses now, considering he had been onshore since 2008;

   e)his reasons for not completing any/most of his courses since arriving onshore as a primary student visa-holder;

   f)his reasons for pursuing information technology, accounting and hospitality courses in the past;

   g)evidence of economic circumstances in his home country;

   h)evidence of significant ties to his home country;  and

   i)evidence of completion of previous studies.

4. The Applicant responded to the invitation to comment on 26 May 2014.

5. On 3 December 2014, a delegate of the First Respondent refused to grant the visa.  The delegate was not satisfied the Applicant was a genuine Applicant for entry and stay as a student and that he intended to stay in Australia temporarily, given the Applicant’s lack of academic progress, his study history, his potential circumstances in Australia, his immigration history and the lack of value of the course to his future.  The delegate found the Applicant was using the student visa program to circumvent permanent migration programs.

6. On 17 December 2014, the Applicant applied to the then Migration Review Tribunal for review of the delegate’s decision. 

7. With its hearing invitation letter, the Tribunal invited the Applicant to provide all documents that he intended to rely on to establish that he met the criteria for the visa.  Additionally, the Tribunal requested the Applicant provide information so that a decision could be made as quickly as possible. The information sought was:-

   a)a copy of the Applicant’s current Certificate of Enrolment (COE) as required for the grant of a student visa; 

   b)documents that showed the Applicant was currently enrolled in a course or had an offer of enrolment in a registered course as required for the grant of a student visa;

   c)documents that showed the Applicant’s past studies in Australia, including copies of all his attendance certificates, academic transcripts and certificates of completion, as well as documents evidencing any work-related to past or intended studies in Australia; and

   d)an explanation of any gaps in the Applicant’s enrolments and any documentary evidence relevant to his explanation.

8. The hearing date was noted as 9 December 2015. 

9. On 29 November 2015, the Applicant’s representative submitted documents in response to the Tribunal’s request for documents.

10. The Applicant appeared before the Tribunal on 9 December 2015 to give evidence and present arguments in his proceedings. 

    
    

    The Applicant was represented in relation to the review by his registered migration agent who attended the hearing via telephone conference. 

The Tribunal decision

1. The Tribunal noted that the Applicant was then a 46-year old male national of India.  His wife, three children, siblings and mother all lived in India.  Before arriving in Australia, the Applicant had completed a Bachelor of Commerce degree and was operating his own business for a period of six years in India.  In Australia, he was, at the time of the Tribunal hearing, working at a car wash service centre.  He conceded that his current job was not related to any of the education obtained by him in India or Australia. 

2. The Tribunal correctly identified that the issue before it was whether the Applicant met the time of decision criterion in clause 572.223 of the Regulations. In considering whether the Applicant satisfied the criterion, the Tribunal noted that it was required to have regard to Direction No.53, “Assessing the genuine temporary entrant criterion for Student visa applications.”

3. The Tribunal noted in paragraph 25 of its Decision Record that the Direction indicates that the factors specified should not be used as a checklist, but rather are intended to guide decision-makers to weigh up the Applicant’s circumstances as a whole in reaching a finding about whether the Applicant satisfies the genuine temporary entrant criterion. 

4. As to the Applicant’s history, the Tribunal noted the following 

   
   

   in (relevantly) paragraphs 15 to 20 inclusive of the Decision Record:-

   “[15]… [The Applicant] stated that, since arriving in Australia he has completed Certificate III in Light Vehicle Mechanical Technology (from 5 June 2014 to 4 June 2015) and Certificate IV in Automotive Management (from 5 June 2015 to 4 December 2015). He is currently enrolled into Diploma of Automotive Management course which will commence in January 2016 and which he expects to complete by January 2017.

   [16] He first arrived in Australia in October 2008 as a holder of a Student visa subclass 573 that was valid until 15 March 2010. He was initially enrolled into Graduate Diploma in Information Technology but was advised by the education provider to change this course to Masters of Professional Accounting because he had no IT background. He soon realised that Masters of Accounting course was too difficult for him and, after consulting his family, in May 2009, he decided to enrol into Diploma of Hospitality course which included Certificate III in Hospitality (Commercial Cookery). He did not complete this course because teaching staff was not good. He could not provide any explanation as to why he did not change the education provider if he was not satisfied with the quality of teaching at this institute. He gave evidence that he wanted to return to India but decided to stay because his wife decided to pursue studies in Australia. He conceded that studying a hospitality course was not related to his original career plans, education obtained in India or his work experience from India.

   [17] He conceded in his evidence that he was initially granted higher education student visa to complete higher education studies in Australia and that he did not complete his studies in this sector and changed to vocational education in May 2009.

   [18] His wife decided to pursue her education in Australia. He gave evidence that she was granted a Student visa subclass 572 in May 2009 and has subsequently completed Diploma of Business and Certificate IV in IT. In September 2014, together with their three children she returned India. Mr Neelakandan was holding a student visa during this period (as a dependant family member) but was not undertaking any course of study despite being aware that he was not prevented from doing so.

   [19] On 5 May 2014 he applied for the student visa that is subject of the current review application based on his enrolment into packaged course of Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Management and Diploma in Automotive  Management. He has completed Certificate III and IV courses and expects to complete a Diploma course by January 2017. He decided to enrol into these courses because his brother offered him a job in India. He conceded that he changed his career path and that current course is not related to his previous education or career plans.

   [20] He stated that because of his age he was unable to study Diploma of Automotive Management course in India. He then conceded that there are private education providers in India but that (sic) stated that the education is better in Australia and that he has already completed 60% of his course in Australia.”

5. The Tribunal considered the Applicant’s academic qualifications and how they related to his stated career path.  The Tribunal said in paragraph 28 of the Decision Record that the Applicant changed courses and career paths from information technology to accounting and from hospitality to the automotive field, and that some courses were relatively short and relatively inexpensive.  The Tribunal found that the Applicant’s decision to study a Diploma in Hospitality after completing the Bachelor of Commerce in India was irrelevant to his previous qualifications and stated career path.  The Tribunal similarly found that his decision to study a Diploma of Automotive Management was not related or relevant to his previous studies in India or Australia.

6. The Tribunal found that the Applicant provided no explanation as to why he chose not to study while holding a Student (Dependent) Visa from 2011 to 2014.  His enrolment into the Diploma of Hospitality Management at Brighton Educational Services was cancelled.  The Tribunal noted the Applicant stated he was not satisfied with the quality of teaching at this institute, but that he provided no explanation as to why he did not change the educational provider if he was genuinely interested in completing this course. 

7. The Tribunal was not satisfied on the evidence before it that the Applicant had a genuine interest in achieving a successful education outcome and it appeared that he was moving from one education provider to the next when his enrolments were cancelled for not complying with the education provider requirements.  Having considered the Applicant’s circumstances, immigration history and other matters it considered relevant, the Tribunal was ultimately not satisfied the Applicant intended genuinely to stay in Australia temporarily. The Tribunal found that maintaining employment in Australia was one of the reasons for the Applicant maintaining ongoing residence in Australia. Accordingly, the Tribunal found the Applicant did not meet cl.572.223(1)(a) of the Regulations as set out in paragraph 34 of the Decision Record.  It thus affirmed the decision under review. 

Consideration

1. The First Respondent’s submissions that the grounds of application go no higher than seeking impermissible merits review and therefore cannot be made out is an accurate submission and one which the Court accepts, save the generalised ground that the Tribunal did not consider the evidence of the Applicant.

2. Contrary to the assertion of the Applicant, the Court finds the Tribunal considered all of the matters put before it by the Applicant and that the findings made by it were open to it on the evidence before it.  The Tribunal found the Applicant was not a genuine temporary entrant. 

3. No s.359A of the Migration Act 1958 (Cth) (‘the Act’) obligations arose in this matter and the Tribunal complied with s.360 of the Act, canvassing the issues dispositive of the review with the Applicant at a hearing including putting matters of concern to the Tribunal to the Applicant at the hearing on 9 December 2015.

4. There is no arguable case in these proceedings and the application shall be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). A costs order shall follow.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 15 November 2016