Ortega v Minister for Immigration

[2018] FCCA 3585

FEDERAL CIRCUIT COURT OF AUSTRALIA

ORTEGA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3585

Catchwords:
MIGRATION – Application for judicial review – student visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.359AA

Cases cited:

NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75

First Applicant: SILVANA FRANCA RICCOBONO ORTEGA

Second Applicant: ANDRES BELLO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1529 of 2017

Judgment of: Judge Riethmuller

Hearing date: 1 November 2018

Date of Last Submission: 1 November 2018

Delivered at: Melbourne

Delivered on: 1 November 2018

REPRESENTATION

The Second Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the sum of $4,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1529 of 2017

SILVANA FRANCA RICCOBONO ORTEGA

First Applicant

ANDRES BELLO

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. In this matter the first named applicant has not attended and provided a medical certificate. I decline to grant the first applicant an adjournment on the basis that the medical evidence that has been placed before me does not demonstrate that she is unable to attend court as at today’s date, nor the reason why she is otherwise unable to come to court: see generally NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 as approved by the Full Court in Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75.

2. The second applicant appears in person.

   [Further argument ensued]

Background

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made in August 2017.  The applicants are citizens of Colombia and came to Australia as partners for the first applicant to pursue studies in Australia.  The student visa issued to the first applicant enabled her to come to Australia in October 2011.  In April 2015 she was granted another student visa until July 2015.  The second applicant’s visa is only on the basis of being a spouse of the first applicant

2. In July 2015 a delegate of the Minister refused to grant another student visa on the basis that the first applicant was not a genuine temporary entrant.  The applicants seek judicial review of that decision. 

3. The first applicant in this matter is a dentist: see [17]. She said that she came to Australia to learn English and to gain knowledge and skills to open her own dental practice. The first applicant engaged in a variety of low level courses. Over the six year period, she spent approximately 70 weeks studying English and about one year studying business. At one point the first applicant was enrolled in a course concerning children’s services. Not surprisingly, the Tribunal did not see any real connection between a children’s services course and the objective of opening her own dental practice.

4. When the first applicant was asked about the course in human resources management that she wished to undertake, she did not know what the contents of the course were, how long the course would be, or how many units were involved.  Nor did she seem to be aware that three of the units were units that she had already completed in other courses: see [23] of the decision. 

5. The Tribunal was not satisfied that the first applicant was a genuine student who intended to stay temporarily in Australia and therefore she did not meet the visa criteria.

Grounds of Application

1. The grounds of the judicial review application are as follows.

   1. Applicant had lodged an application for a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa on the 12^th of June 2015 which has been wrongly decided.

   2. Applicant is a genuine student and wishes for her student visa to be granted so she can complete her studies and return back home.  The Immigration Department and the Administrative Appeals Tribunal has made an error in deciding the application hence why we seek review at Federal Court to attend to the jurisdictional error which has occurred.

   3. Applicant wishes for a fair chance and request the Judicial courts to kindly review the matter and provide her with justice as she has been denied justice and there has been a jurisdictional error in deciding this case.

   4. After receiving the refusal notification from the Immigration Department and Border Protection, applicant decided to lodge a review application at the Administrative Appeals Tribunal however the tribunal made an unfair decision which jurisdictional error. Due to the failure in considering the errors on the applications by the Department of Immigration and Border Protection the decision is unfairly made and the case officer has made an error in their judgment.

   5. Applicant wishes to have the decision corrected and she has been a genuine student and will continue to be.  Applicant simply wishes to complete her studies and return back home.  Applicant has been a genuine student and simply wishes to complete her studies hence why her student visa was extended to complete her studies.  Applicant hopes for a fair chance and requests the Judicial courts to kindly review the matter and provide her with justice as she has been denied justice.

2. These grounds allege error on the part of the Tribunal but do not appear to identify any specific error.  The second applicant was unable to identify any particular error in submissions.  It is not open to this Court to review the decision on its merits.  The first applicant failed to appear at the hearing and an adjournment application was refused.

3. I note from the face of the decision, that information from the Government PRISMS records about enrolments was put to the applicant under s.359AA of the Migration Act 1958 to allow her to give evidence about the information in those records.  There does not appear to be a breach of the rules of procedural fairness given that she was shown and asked to comment upon this information. 

4. The nature of the decision in this case is governed by Direction No.53 relating to student visa applications.  This Direction requires the Tribunal to consider a number of different aspects of an applicant’s circumstances.  The Tribunal is required to consider each of the general aspects identified in Direction No.53, however, the Direction does not require the Tribunal to approach these factors as a checklist or shopping list. 

5. To the extent that the evidence before the Tribunal related to these factors, the Tribunal appears to have considered the matters.  The applicant’s circumstances in her home country are considered: see [17], [26], [27] and [29].  The applicant’s circumstances in Australia are considered: see [29] and [31].  The value of the course to the applicant’s future is underlying the considerations: see [21] and [23] to [28]. 

6. The applicant’s immigration history in this matter is brief but considered: see [16]. To the extent that it can be said that the history shows a motivation not to study but simply to remain in Australia and that this is another relevant matter, this too was considered by the Tribunal.

Conclusion

1. In the circumstances, I am not persuaded that the applicants have made out any of the grounds set out in the application.  Nor am I persuaded that there was a judicially reviewable error by the Tribunal that was not identified in the grounds. 

2. In the circumstances, I therefore dismiss the application. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  5 December 2018