Neena v Minister for Immigration

[2016] FCCA 881

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEENA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 881

Catchwords:
MIGRATION – Review of former Migration Review Tribunal decision – refusal of student visas – principal applicant found not to be a genuine temporary entrant – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.360, 366, 499

Migration Regulations 1994 (Cth)

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
SZNNE & Anor v Minister for Immigration (2010) 114 ALD 138
SZJTK v Minister of Immigration [2008] FCA 1712

First Applicant: NEENA NEENA

Second Applicant: RAMANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 550 of 2015

Judgment of: Judge Driver

Hearing date: 15 April 2016

Delivered at: Melbourne

Delivered on: 15 April 2016

REPRESENTATION

The applicants appeared in person

Solicitors for the Respondents: Mr Brown for Australian Government Solicitor

ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. The application filed 18 March 2015 is dismissed.

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 550 of 2015

NEENA NEENA

First Applicant

RAMANDEEP SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 16 March 2015.  The Tribunal affirmed decisions of a delegate of the Minister not to grant the applicants temporary student visas.  There are two applicants.  The principal applicant is Mrs Neena Neena and the secondary applicant is her husband, Mr Ramandeep Singh.

2. Background facts relating to the visa application and the decision of the Tribunal on it are set out in the Minister’s outline of legal submissions, filed on 31 March 2016. 

3. The applicants are nationals of India.

4. The first applicant, Mrs Neena, arrived in Australia on 18 November 2008 as the holder of a subclass 573 student visa which expired on 15 March 2011. On 6 June 2011, Mrs Neena was granted a subclass 572 student visa and, on 30 May 2013, she was granted a further subclass 572 visa which was valid until 30 June 2014.[1]

   [1] Court Book (CB) 57

5. On 28 June 2014, the applicants applied for the visas, with Mrs Neena seeking to meet the primary criteria, and the second applicant, Mr Singh, seeking to meet the secondary criteria.[2]

   [2] CB 1

6. On 1 July 2014, the Minister’s Department (the Department) wrote to Mrs Neena[3] inviting her to comment on certain adverse information. That letter stated:

   You arrived in Australia on 18/11/2008 and have studied here for 6 years. You have enrolled and/or studied in the fields of Marketing, Business Management, Hospitality, Electronics and Communications, Food [P]rocessing and Professional Accounting.

   Please outline why you have enrolled in six different fields of study? Please outline your future study goals in Australia. Do you intend to continue study in Australia when you complete your current course or return to India? Do you intend to progress higher in your current field of study once you complete it?

   [3] CB 24

7. On 27 July 2014, Mrs Neena responded to the invitation to comment.[4]

   [4] CB 26

8. On 12 August 2014, a delegate of the Minister refused to grant the visas.[5] The delegate set out Mrs Neena’s extensive enrolment history in Australia[6] and while she considered Mrs Neena’s response to the invitation to comment, the delegate was not satisfied that Mrs Neena was a genuine temporary entrant for the purposes of clause 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

   [5] CB 55

   [6] CB 58-59

9. On 21 August 2014, the applicants applied to the Tribunal for review of the delegate’s decision.[7] A copy of the delegate’s decision was provided with the review application. The applicants also appointed an authorised representative at that time.[8]

   [7] CB 65

   [8] CB 68

10. On 30 January 2015, the Tribunal wrote to the applicants, via their authorised representative, inviting them to attend a hearing on 16 March 2015.[9] A copy of Ministerial Direction No. 53, Assessing the genuine temporary entrant criterion for Student visa applications dated 3 November 2011[10] was attached to the hearing invitation.[11] The hearing invitation also stated that:

    The Tribunal will assess whether you intend to genuinely stay in Australia temporarily as required by clause 572.223(1)(a) of the Migration Regulations.

    Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.

    Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to Direction No. 53.

    [9] CB 72

    [10] Direction No. 53

    [11] CB 77

11. On 11 February 2015, the applicants responded to the hearing invitation indicating that they would appear at the scheduled hearing with their authorised representative.[12]

    [12] CB 82

12. On 4 March 2015, the applicants’ representative provided the Tribunal with submissions going to Direction No. 53 along with a supporting statutory declaration made by Mrs Neena.[13]

    [13] CB 86

13. On 16 March 2015, Mrs Neena wrote to the Tribunal stating that she was unable to attend the hearing scheduled that day “due to bowel motion and vomiting which is causing dizziness and headache”. A medical certificate was attached to that letter indicating that Mrs Neena was unable to “attend her usual duties” on 16 and 17 March 2015.[14] However, Mrs Neena gave evidence at the scheduled hearing by telephone. Mr Singh and the applicants’ representative appeared at the hearing in person.[15]

    [14] CB 103

    [15] CB 105

Legislative framework

1. At the time of the application for the visas, clause 572.223 of Schedule 2 to the Regulations was an essential criterion for primary applicants for the grant of a subclass 572 visa. The clause provided that, at the time of the decision:

   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. Under s.499 of the Migration Act 1958 (Migration Act) the Tribunal is required to comply with written directions given by the Minister about the performance of functions or the exercise of powers under the Migration Act. Relevantly in this case, Direction No. 53 set out the factors to be taken into account in assessing whether an applicant for a student visa was a genuine temporary applicant for entry and stay as a student.

Tribunal’s findings and reasons

1. At the outset the Tribunal identified that the dipositive issue on the review was whether the applicant satisfied clause 572.223.[16] The Tribunal also noted the imperative requirement to have regard to Direction No. 53.[17]

   [16] CB 116 at [9]

   [17] CB 117 at [10]-[11]

2. Mrs Neena gave evidence at the hearing about the courses that she had completed since coming to Australia[18] and the Tribunal put its concerns about her academic record and other relevant matters to her, including that:

   a)her academic qualifications over almost six and a half years appeared to reflect a “poor academic record”;[19]

   b)she appeared to be sufficiently qualified to commence a business if that was her genuine career goal;[20]

   c)it had questions about whether she was likely to return to her home country after her next course, given that she had been in Australia for over six years;[21]

   d)she had provided “little detail” about her future business plans, despite the Tribunal’s best efforts to elicit evidence from her about that;[22]

   e)she appeared to have undertaken a series of short inexpensive courses.[23]

   [18] see, eg, CB 117 at [12] and [14]

   [19] CB 118 at [14]

   [20] CB 118 at [15]

   [21] CB 118 at [17]

   [22] CB 119 at [19]

   [23] CB 119 at [21]

3. The Tribunal also noted certain unsatisfactory characteristics of the evidence presented by Mrs Neena.[24]

   [24] see, eg, CB 118 at [15] and [19] and CB 102 at [25] and [26]

4. Ultimately the Tribunal was not satisfied that Mrs Neena had intentions to establish a restaurant in India.[25] The Tribunal formed adverse views of Mrs Neena’s credibility based on her evasive answers to its direct questions.[26] It also placed weight on the fact that she had ceased pursuing her master degree without even completing a semester of study and then significantly changed fields of study and downgraded her qualification level.[27]

   [25] CB 119 at [19]

   [26] CB 119 at [20]

   [27] CB 119 at [22]

5. The Tribunal also placed weight on the costs of the courses Mrs Neena had completed in Australia and found that the courses were “relatively inexpensive compared to higher degree courses”.[28]

   [28] CB 120 at [24]

6. While the Tribunal accepted that Mrs Neena had a daughter and other family in India which provided an incentive for her to return, this factor did not overcome its other concerns.[29]

   [29] CB 121 at [28]

7. In the circumstances, the Tribunal found that Mrs Neena did not meet clause 572.223(1)(a) of the Regulations.[30] With the exception of a subclass 580 (student guardian) visa, the Tribunal noted that all other class TU visas contained an identical requirement to clause 572.223(1)(a). Further, there was no evidence before the Tribunal that Mrs Neena met the prescribed criteria for a subclass 580 visa. The Tribunal therefore affirmed the decision under review.[31]

   [30] CB 121 at [29]

   [31] CB 121 at [30]-[31]

Current proceedings

1. These proceedings began with a show cause application, filed on 18 March 2015.  The applicants continue to rely upon that application.  They have not taken up the opportunity afforded by procedural orders made by a registrar for the filing of an amended application or additional evidence.  The grounds in the application are somewhat discursive, and are located in two parts of the application form. The grounds are: 

   1.I provided all the evidence and documents & fulfilled all The Criteria which has to be mentioned in The Checklist but then also immigration Resused the grant of visa.

   1.I had given the interview over the phone to the Migration Review Tribunal.  & I given all the answers which I had to even though I was sick. & I sent the medical from the doctor that I am not be able to attend the hearing because of my sickness. & unfortunately on the next day I got the email on my mailbox that Migration Review Tribunal affirm the decision. So on the other hand my immigration agent along with me is not satisfied with the decision made by the Tribunal. So I want to make an application in Federal Circuit Court to challenge the decision because I have enough evidence and documents to fulfil the criteria but they just don’t want to look at it.

   (errors in original)

2. The application is supported by a short affidavit filed with it by Mrs Neena, which I received.  I also have before me as evidence the court book, filed on 21 May 2015.

3. Only the Minister has filed written submissions in relation to the application, pursuant to the registrar’s procedural orders.  I invited oral submissions from the applicants today, who both attended in person.  It was apparent, however, that they were in a difficulty, bearing in mind the legal character of today’s hearing and a question whether or to what extent they had read and understood the Minister’s legal submissions.  Taking that into account, I offered the applicants a short adjournment, so that they could peruse those submissions more thoroughly, or whether they would prefer the Minister’s representative to present submissions first.  They took the latter option. 

4. I then invited oral submissions from the applicants again.  Mrs Neena drew attention to the fact that she had asserted illness at the time of the Tribunal hearing and had attended by telephone.  That is supported by the Tribunal’s decision record.  There is nothing necessarily unfair about that process.  It is a process that this Court follows from time to time in cases where applicants suffer from a temporary or relatively minor illness, which prevents them coming to Court personally, but does not prevent them from attending by telephone from home.  There is nothing in the Tribunal’s decision record which suggests that any complaint was made about the Tribunal’s process by either Mrs Neena or by Mr Singh or their representative.  There is no transcript before the Court as to what occurred, but neither the Minister nor the applicants pointed to anything arising from the sound recording, which I have not heard, but which the Minister’s solicitor had listened to.

5. In the circumstances, it is not open to conclude that there was any procedural unfairness flowing from the manner of proceeding by the Tribunal.  In that regard, I also note that the second applicant, Mr Singh, and their representative attended the Tribunal hearing in person.  

6. Plainly, in my view, the conclusions reached by the Tribunal were open to it on the material before it.  The applicants disagree with the Tribunal’s conclusions, but that does not rise above a dispute over the merits of the Tribunal decision.  The Minister’s submissions otherwise deal with the grounds of review advanced in the application.  I agree with those submissions.

Appearance by phone at hearing

1. There was no error in the Tribunal hearing proceeding on 16 March 2015 or in taking evidence from the applicant by telephone.

2. The obligation to afford applicants a real and meaningful opportunity to give evidence and present arguments contained in s.360(1) the Migration Act does not require an applicant to appear in person in the same room as a decision-maker.[32] Indeed, the Tribunal is expressly empowered to allow an appearance by telephone under s.366(1)(a) of the Migration Act.

   [32] SZNNE & Anor v Minister for Immigration (2010) 114 ALD 138 (SZNNE) at [48]

3. There is no evidence that Mrs Neena was unable to properly participate in the hearing because of illness or because of the use of telephone technology. Nor is there any indication that Mrs Neena or her authorised representative objected to her taking part in the hearing by telephone.[33]

   [33] see, eg, SZNNE citing SZJTK v Minister of Immigration [2008] FCA 1712 at [23]-[26]

4. In the circumstances, there was no error in the Tribunal’s approach.

Evidence to satisfy the visa criteria

1. Mrs Neena’s contention that she has enough evidence to satisfy the visa criteria is no more than an impermissible request for merits review.[34]

   [34] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

2. The Tribunal considered Mrs Neena’s oral evidence at hearing and the material that she had provided to it and the Department. It gave detailed reasons setting out it consideration of that evidence and the basis for its factual findings.

Conclusion

1. I conclude that the applicants are unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. 

2. I will order that the application filed 18 March 2015 is dismissed.

3. In consequence of the dismissal of the application the Minister seeks an order for costs, fixed in the sum of $5,500. Mr Singh indicated that he and his wife may face some difficulty in paying that amount but impecuniosity is not a reason for the Court to refrain from making a costs order. I am satisfied that costs of at least $5,500 have been reasonably and properly incurred on behalf of the Minister and considered on a party and party basis.

4. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,500.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 19 April 2016