Parmar v Minister for Immigration

[2020] FCCA 1419

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARMAR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1419

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

First Applicant: VIJAYKUMAR BALDEVDAS PARMAR

Second Applicant: DAYA VIJAYKUMAR PARMAR

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 48 of 2019

Judgment of: Judge Vasta

Hearing date: 27 April 2020

Date of Last Submission: 27 April 2020

Delivered at: Brisbane

Delivered on: 27 April 2020

REPRESENTATION

First Applicant in person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the Application filed 18 January 2019 is dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

IT IS NOTED:

A.    That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 48 of 2019

VIJAYKUMAR BALDEVDAS PARMAR

First Applicant

DAYA VIJAYKUMAR PARMAR

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 17 December 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant a student visa.  The Applicant had a secondary Applicant, whom would seem to be his wife, who was a family member of a person who was seeking a visa.  Her claim rises or falls upon the claim of the Applicant, Mr Parmar.  The Applicant asked this Court, on 18 January 2019, to review the decision. 

2. The background to the matter is this.  The Applicant was born in India in 1982.  He arrived in Australia on 28 June 2013 on a subclass 573 student visa.  He has not left Australia since his arrival in June 2013. 

3. The AAT had to look at whether the Applicant was a genuine temporary student; that is, did he genuinely intend to stay in Australia temporarily.  The Applicant told the Tribunal that, in India, he was employed and rose to the rank of assistant store manager at Big Bazaar, which is a chain of superstores owned by Pantaloon Retail (India) Limited. 

4. The Applicant had ambitions to go higher, but was of the view that, with a qualification from overseas, especially in Australia, he would be able to achieve those ambitions.  He attempted to start a Bachelor of Business degree at James Cook University, but found that degree too hard. 

5. He left that course and enrolled in business and management courses at Spencer College.  He did not complete those diplomas because there was a problem between himself and Spencer College.  The problem revolved around, according to the Applicant, overdue fees, and he left Spencer College with that dispute seemingly unresolved.

6. He then enrolled in business-oriented courses at the Skills Institute.  He told the Tribunal that he did not return home to India, even for a visit, because it was always planned that his parents would visit him in Australia, but they were not able to do so because of his mother’s ill health. 

7. The Tribunal put to the Applicant that, having a look at his education history in Australia, the visa that he was seeking was so that he could study a course that was similar in content and at the same level as courses he had previously enrolled in.  The Tribunal noted that despite being in Australia for some five and a-half years, the Applicant had completed only one diploma-level course and one advanced diploma‑level course, each with only one year’s duration.

8. The Applicant acknowledged that he had completed the Diploma of Project Management from the Skills Institute in July 2017 and an Advanced Diploma of Project Management, also from the Skills Institute, in June 2018. 

9. He said that he had completed two business courses with Spencer College, but that Spencer College refused to award him qualifications because of their conflict.  The claim that the Applicant made was that the college corruptly offered to recognise his completed course work only on the condition that he remained at the college for a further two years and paid for two more courses, and he refused to do that.

10. The Applicant confirmed with the Tribunal that he did not lodge a complaint about Spencer College, and he did not raise those study problems with the Department.  The explanation he gave was that he was young and naive at the time.  However, as the Tribunal noted, the Applicant was aged in his thirties when he enrolled there, and had lived in Australia and New Zealand for some years. The Tribunal felt the Applicant was confident and assertive.

11. The Tribunal noted that it had asked the Applicant to provide, seven days before the hearing, any copies of his attendance certificates and academic transcripts as well as certificates of completion.  The Applicant said that Spencer College would not help him get those records.  The Tribunal did not accept that this was a true state of affairs.  The Tribunal noted that the Applicant lived and worked in Australia for over four years before he attained his first diploma-level qualification in this country.

12. The Tribunal noted that, in August 2016, the Applicant had written to the department saying this. 

    After completion of Diploma in Project Management and Advance Diploma in program management at Skills Institute, I will be qualified to get a good position in any jobs. This course has a good scope for the future. … After completing my study I will have all the knowledge to go back with good management skill and can utilise that on customer service fields and build a great position in middle level management.

13. The Tribunal asked the Applicant, after noting that he had actually completed the two courses, why he, the Applicant, did not return to India after obtaining his advanced diploma.  The Applicant confirmed that he still intends to return to India and work in the retail sector, but he says that has realised that he needs further broader skills to equip him to lead large teams in a large retail business.  He told the Tribunal that he could earn 100,000 rupees a month, but he did not provide a detailed explanation of the sort of position to which he aspires.

14. The Tribunal put to the Applicant that he was, at that time, 36 years old; he had been out of India and the Indian job market for 10 years; and, he had not worked in business or management leadership positions in retail in Australia.  The Tribunal put to the Applicant that any potential employer could look at his record, see the lack of actual progress, and come to a conclusion that the Applicant actually lacked the drive and ambition necessary for a management-level career. 

15. The Applicant said in response to this, that Australian business qualifications are respected by employers in India.  He said that the courses, he has enrolled in, have all been in the same field of study, and that this demonstrated his commitment to return to India and work at management level.  The Tribunal asked the Applicant if he was intending to leave Australia after obtaining one more advanced diploma.  The Applicant said that he does not, because he wants to enrol again in a Bachelor of Business course because he is now more confident.  The Applicant said it would impress his family more if he returned to India with a bachelor degree.

16. The Tribunal said that, even if the Applicant enrols in another bachelor degree, he will have lived in the country for over a decade and enrolled in a large number of business and management courses, and that when one looks at his academic record and his intentions, that they were not commensurate with the temporary stay objectives of a student visa. 

17. The Tribunal did not accept that the prospect of a managerial-level position in India was incentive for the Applicant to return home.  The Tribunal noted that the remuneration for the position he claims to aspire to, is less than he could earn in Australia.

18. The Tribunal noted that the Applicant still had a 10 year old son in India, but did not think that his presence was a significant incentive for the Applicant to return.  The Tribunal accepted that undertaking business‑related courses in Australia in English may give the Applicant a competitive advantage in a career in retail management, but the Tribunal did not accept that this advantage would be compounded if the Applicant continued to do additional similar courses.

19. The Tribunal was not satisfied that further business studies in Australia would confer on the Applicant the additional advantage that would justify the time and expense involved. 

20. Given all of those matters, the Tribunal was concerned that the Applicant was using student visas to maintain ongoing residence and to circumvent the intentions of the migration program.  Therefore, the Tribunal was not satisfied that the Applicant intends to genuinely stay in Australia as a student temporarily.  The Tribunal then affirmed the decision.

21. The application filed by the Applicant argues that the Court should look at the decision of the Department of Home Affairs.  The Applicant has appeared before me today with the assistance of an interpreter, notwithstanding the length of time he has had in this country.  At the beginning of the hearing, I explained that this Court does not have jurisdiction to review the decision of the Department of Home Affairs.

22. The Applicant’s arguments were really contained in a two-page document that was annexed to his affidavit that was filed at the time of the filing of the application.  He explained, in that document, that he was confident that the AAT would consider his circumstances, but he was disappointed by their decision, and feels that the AAT member has made a jurisdictional error.  He has not articulated what that jurisdictional error is, but complains that the AAT did not trust that he had genuine intentions of being a temporary resident and student in Australia. 

23. He complains in these terms. 

    WHY WAS I NOT TAKEN AS A GENUINE STUDENT, AND WHY MY INTENTIONS OF GENUINELY STUDYING IN Australia are doubted, even after finishing four courses successfully? 

    Why a student, who was not confident to study a bachelor degree in the beginning and after studying a few courses in Australia and has genuine intentions to study a bachelor degree and then go home is not given a chance to fulfil his dreams?

24. Of course, those two rhetorical questions posed by the Applicant do not illustrate any jurisdictional error.  The Applicant also criticised the actions of Spencer College, and questioned why the authorities have not stopped the “manipulate malpractice of such colleges”.  Of course, the Applicant had no documentation whatsoever to back up any of his claims against Spencer College, and he had been given the opportunity to make complaints against the college or to inform the department, and he failed to do so.

25. He also complains that he could not understand how his chosen courses were similar.  Of course, one just simply needs to look at the courses to understand why it is that the Tribunal labelled them as similar.  The Applicant complains that, because of everything that Spencer College had done and what the AAT has now said, that he could not go back to his family and show his face, because he had nothing to prove that he had completed some qualifications in Australia.

26. He wrote that in the hearing he confirmed and made it very clear to the member that after completing his studies, he had no issues in going back to his country, but he was not given the opportunity to finish those studies, which would have finished in one and a-half years.  He said that he wanted to go back as a proud son and a proud father. 

27. None of those arguments illustrate any jurisdictional error.  They are arguments that are targeted to have an emotional response to what has occurred.  He is, in effect, asking this Court to undertake an impermissible merits review.

28. As my recitation of the Tribunal’s reasoning illustrates, the Tribunal looked at all matters and came to conclusions that were open on the evidence.  If the conclusions were open on the evidence, there is no jurisdictional error. 

29. I dismiss the application with costs in the sum of $5,000 and I will order that the name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 8 June 2020