Patel v Minister for Immigration
[2018] FCCA 862
•12 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 862 |
| Catchwords: MIGRATION – Judicial review – student visa – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), s.499 Ministerial Direction Number 53 |
| Cases cited: Saini v Minister for Immigration and Border Protection [2016] FCA 858 |
| Applicant: | VIMALKUMAR AKA VINODKUMAR PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 700 of 2015 |
| Judgment of: | Judge Howard |
| Hearing date: | 12 February 2018 |
| Date of Last Submission: | 12 February 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 12 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hegedus |
| Solicitors for the Applicant: | HopgoodGanim Lawyers |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
THE COURT ORDERS ON A FINAL BASIS:
That the Application filed 3 August 2015, Amended on 6 September 2016 and Further Amended on 19 September 2016 be dismissed.
That the Applicant pay the First Respondent’s costs thrown away by the adjournment on 19 September 2016 in the sum of $2,702.50.
That the Applicant pay the First Respondent’s costs of the proceedings in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 700 of 2015
| VIMALKUMAR AKA VINODKUMAR PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
A.These reasons were delivered ex tempore on 12 February 2018 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
In the case before the court the applicant is a citizen of India born on 25 July 1992. He arrived in Australia on 20 November 2013 as the holder of a student visa subclass 572. He was going to undertake an initial English course and then a Masters of International Tourism and Hotel Management. He subsequently applied for other student visas. One application was actually withdrawn, but relevantly, on 6 October 2014 the applicant made an application for a student subclass 572 visa. On the very next day his previous visa that had been in operation – the subclass 573 – was cancelled due to a breach of condition 8516 because his enrolment in the Masters of International Tourism and Hotel Management had not been maintained.
He was hoping to become enrolled in what I will refer to as, “vocational courses”, referred to as Certificate IV Commercial Cookery and Diploma of Hospitality. These courses were relevant for a subclass 572 visa, and that is what the applicant was now applying for because he was intending now to pursue the vocational courses, and, as it transpires, he says he was also intending to then go back to the masters course. But for present purposes he applied on 6 October 2014 for the subclass 572 visa.
On 28 October 2014 a delegate of the Minister’s refused the application on the basis that the applicant did not meet the requirements of clause 572.223 of the regulations made under the Migration Act. In particular, the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia. On 3 November 2014 the applicant applied to the Migration Review Tribunal, now known as the Administrative Appeals Tribunal, for a review of the decision of the delegate. The applicant is here today and has had the benefit of an interpreter as well, and of course, he is represented by Mr Hegedus of counsel.
On 8 July 2015 the tribunal handed down its decision and affirmed the decision of the delegate. Subsequently the applicant filed an application for judicial review in this court, and the matter came on in late 2016. At about that time – maybe on that day, maybe slightly before – the applicant sought to amend the application by adding another ground, and an adjournment was granted, and the matter has now come back before the court. The three grounds of the particular application are found in the so-called further amended application filed on 19 September 2016.
Ground number 1 reads:
“1. The Administrative Appeal Tribunal ("”the Tribunal"”)failed to consider a relevant issue that affected the exercise of its authority in making a decision not to grant the Applicant a visa and in so doing committed jurisdictional error.
Particulars
(a)The Tribunal, at the hearing on 8 July 2015 and in the written record of the decision of the same date, did not consider evidence led by the Applicant to the effect that his intention was to undertake a subsequent course of study (a Masters level course) to the course of study the subject of the application (a Certificate IV in Commercial Cookery and a Diploma of Hospitality) and then return to India.”
It is essentially that the Administrative Appeals Tribunal or the tribunal failed to consider a relevant consideration or a relevant issue, namely it is contended by the applicant that the tribunal did not consider evidence led by the applicant to the effect that his intention was to undertake a subsequent course of study, a masters level course, to the course of study the subject of the application which was the Certificate IV in Commercial Cookery and a Diploma of Hospitality and then return to India.
The court does have the benefit of the transcript and, of course, the reasons. In the reasons which are contained in the court bundle – this bundle will be exhibit 1, by the way, for the purposes of this hearing. In particular I note page number 14 of the bundle, and I should be more specific. Paragraph number 16 of the decision states:
“16. The applicant told the Tribunal that on arrival in Australia, he completed his English course with a good score and full attendance, then withdrew from the Masters in International Tourism and Hotel Management at SCU after the first semester because he could not get good assessment scores and he found the course too hard. He then enrolled in Commercial Cookery and Hospitality at Spencer College. The Tribunal observed that in doing so the applicant had breached condition 8516 of his TU 573 visa as this college was not an eligible provider in the context of the student visa streamline arrangements under which his visa was granted....”
I note in particular what was stated in paragraph number 16. There’s a sentence that begins, “Noting that many students” and it reads as follows:
“….Noting that many students had successes and failures in the course of their study, the tribunal questioned why a genuine student would abandon a higher degree course for a lesser course like commercial cookery after only one semester. The applicant responded that he was advised to first do Commercial Cookery then do the masters course when he was more experienced, which is why he applied to Spencer College.”
In that paragraph alone it seems to me to be a sufficient reason to dismiss ground number 1. Quite clearly the tribunal even in those two sentences in paragraph 16 it is clear that the tribunal had, in fact, considered the evidence led by the applicant about his intention to undertake a subsequent course at a masters level after he finished the course at the vocational level. Down further in paragraph number 21 the tribunal was considering his future plans – that is, the applicant’s future plans. Paragraph 21 states:
“21. In terms of his future plans, the applicant said that if he got a good job in Australia, he would do this job and would then go to India to work in a hotel or open his own business. He confirmed that, as noted in his 9 September 2014 statement, he is assured of a position as restaurant manager at Indian Whisper Restaurant on the Gold Coast after he finishes his course and plans to work there during the Commonwealth Games in 2018. He said the manager at the hotel where he previously worked in India assured him of a job when he gets his higher degree and gains some experience; and that his job offer stands, even if he does not return for four years. The Tribunal is sceptical about the solidity of such an open-ended offer in the face of changing economic circumstances. While the presence of the applicant’s family in India provides some incentive for him to return there, the Tribunal considers that this may be outweighed by the applicant’s positive job prospects in Australia, where he has indicated that he has supportive friends and a girlfriend.”
It is certainly my view that so far as ground number 1 is concerned, it must be dismissed.
I was referred to a particular decision, the decision of Saini – Saini v Minister for Immigration and Border Protection [2016] FCA 858. It is a decision of Logan J. I note paragraph 30. I note paragraph 9 of the decision sets out clause 572.223:
“9. It is necessary now to set out from the Regulations cl 572.223 as it stood at the time when the Tribunal gave its decision:
Subclass 572—Vocational Education and Training
572.22 — Criteria to be satisfied at time of decision
572.223
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) theMinister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) theapplicant’s circumstances; and
(ii) theapplicant’s immigration history; and
(iii) ifthe applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) anyother relevant matter; and
(b) theapplicant 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) theMinister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) thestated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) anyother 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”
This is from the regulations I referred to earlier. The Minister has to be satisfied that:
“….The applicant is a genuine applicant for entry and stay as a student…”
The Minister, essentially, has to be satisfied that the applicant intends genuinely to stay in Australia temporarily having regard to various matters that are set out: The applicant’s circumstances, the applicant’s immigration history etc. Logan J was saying:
“30…..What is required is an evaluation by the decision-maker of intention as at the time of decision.”
The time of decision, of course, is July of 2015, and the tribunal, based upon all of the evidence, had come to the conclusion that, in fact, essentially the applicant involved was not intending genuinely to stay in Australia temporarily. I note the finding or the observation at paragraph number 20 – in the last two to three lines of paragraph 20 in the tribunal’s decision where it is noted:
“20….In the Tribunal’s view, his interest in staying in Australia overrides his interest in any particular course he might pursue.”
Having regard to that observation by the tribunal, having regard to the other paragraphs to which I have referred – namely paragraphs 16 and 21 of the tribunal’s decision – it was certainly open to the tribunal on the evidence before it to conclude that the applicant at the time did not have an intention genuinely to stay in Australia temporarily. Further, it is apparent from a review of those parts of the decision to which I have referred combined with the other concerns raised by the tribunal in its decision, noting paragraph 19 about concerns about inconsistencies in his evidence and about his study intentions including which courses he would undertake – taking into account all of those matters the tribunal concluded that the applicant did not have the genuine intention to remain in Australia temporarily.
On a consideration of those matters to which I have referred, I am satisfied that the tribunal did, in fact, consider evidence led by the applicant to the effect that it was his intention to undertake a subsequent course of study. That is, he said he was going to do the masters level after the vocational level and then return to India. In the transcript that was provided – it is clear enough that the – for instance, page 12 of the transcript from about line 5 or line 4 where the member said, “What are you plans?” and he said, “My plan is to study again.” So quite clearly by reference to the word “again” he was going to do the vocational course and then he was going to do the masters course, and he says it there at page 12. These matters were considered further at page 13 in the transcript.
It is plain enough that he made himself clear that he was going to do the vocational then go and do a masters, and these matters were taken into account and considered by the tribunal. Ground number 1 therefore fails – is dismissed – for the tribunal clearly did consider the relevant consideration.
The second ground is referred to as, “the tribunal asking itself a wrong question”, and the particulars are:
“2. The Tribunal asked itself a wrong question which affected the exercise of its authority in making a decision not to grant the Applicant a visa and in so doing committed jurisdictional error.
Particulars
(a)The Tribunal in its written record of decision of 8 July 2015 determined that the Applicant's "interest in staying in Australia overrides his interest in any particular course that he might pursue. ”It is submitted that question is not determinative of the issues that fell to the Tribunal for consideration, namely whether the Applicant intended to pursue his studies and whether the Applicant's intention to remain in Australia was of a temporary nature.”
Many of the comments I have made in relation to ground 1 are appropriate here too. Now, this regulation to which I have referred also requires consideration. There is also so-called direction number 53 made under section 499 of the Migration Act.
Ground number 2, in the way it has been particularised, reference has been made to some words used in quotes in the particulars that the tribunal in its written record of decision determined that the applicant’s “interest in staying in Australia overrides his interest in any particular course that he might pursue”. It is worth noting in relation to this particular ground and the reference to the wording used in the reasons of the tribunal – it is worth noting and reminding ourselves of what was said by the High Court in the Wu Shan Liang case that the reasons of the tribunal are not to be scrutinised with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Anor (1996) 185 CLR 259.
I am satisfied that the tribunal knew precisely what question it needed to ask itself and what question it needed to answer. That is clear enough from paragraphs 6, 7 and 8 of the reasons. It sets out there the regulation. It notes that the tribunal must have regard to direction number 53, the types of matters to be taken into account, and this is all assisting in determining the questions set out in clause 572.223 subsection (1)(a) for the Minister to basically be considered and satisfied that the applicant intends genuinely to staying in Australia temporarily. The fact that perhaps a slightly different form of words was used at one stage in the reasons, it does not mean that it amounts to jurisdictional error.
The tribunal was required to consider “as at the time of the decision” –“what was the intention of the applicant?” The tribunal did ask itself the correct question and came to a conclusion. In paragraph 25, for instance, it says:
“25. On the basis of all the evidence before it, and having considered the applicant’s circumstances, immigration history and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).”
It is very apparent from there that finding, that conclusion that the correct question was asked and answered. Ground number 2 is dismissed.
Ground number 3 states:
“3. The Tribunal failed to take into account the value of the relevant course of study to the Applicant’s future as required by Ministerial Direction no. 53. In doing so, the Tribunal failed to take into account a relevant consideration and committed jurisdictional error.
Particulars
(a). Ministerial Direction no 53 – “Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications" was a direction given by the Minister of Immigration and Citizenship to delegates performing functions under the Migration Act 1958 pursuant to what was then section 499(1) of the Act. The Direction commenced on 5 November 2011 and was still in place at the time of the Tribunal's decision to refuse the Applicant's application for a student visa (subclass 572). The Direction required that for applicants for student visas, the decision maker “must ... have regard to the value of the course to the applicant's future."” The course or courses which were the subject of the Applicant's visa application were a Certificate IV in Commercial Cookery and a Diploma of Hospitality. The record of the Tribunal's decision does not indicate that the Tribunal considered the value or otherwise of these courses to the Applicant's future.”
It is maintained that the tribunal failed to take into account the value of the relevant course of study, and reference is made to Ministerial Direction number 53, and at the outset it must be noted decisions in relation to this Direction number 53. In relation to that direction what is required is that there needs to be a consideration as to whether the tribunal’s decision in substance had regard to the matters in Direction number 53, and that was confirmed in two particulars cases, Adigbo v Minister for Immigration and Border Protection [2016] FCCA 2250, a decision of Judge Driver, and a decision called Nguyen v Minister for Immigration and Border Protection [2013] FCCA 1864 – a decision of Judge Lloyd-Jones.
Also I note the actual Direction itself, part number 2, directions, assessing the genuine temporary entrant criterion. Paragraph number 1:
“Decision-makers should not use the factors specified in this direction as a checklist. Rather, they 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.”
This question of the value, I note, for instance, paragraphs 7 and 12 which forms part of Direction number 53. Paragraphs 7 and 12 are relevant:
“7. For Primary applicants of subclass 570, 571, 572, 573, 574, 575 and 576 Student visas, decision makers must also have regard to the value of the course to the applicant’s future……
12. Decision makers must have regard to the following factors in considering the value of the course to the applicant’s future:
a.Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways.
b.Relevance of the course to the student’s past or proposed future employment either in their home country or a third country.
c.Remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study”
Paragraph 7 talks about when the tribunal has regard to the applicant’s circumstances, the tribunal must also have regard to the value of the course to the applicant’s future, and that seems to be the specific complaint alleged in ground number 3. Well, the decision itself does, in a number of parts, deal with this. Paragraph 7 of the decision notes – it is quite clear the tribunal knew that it was mandatory for the tribunal to have regard to Direction number 53, and dot point number 1 is indeed the applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to the applicant’s future.
Further explanation of that “value of the course” – that is what is contained in paragraph 12 of the Direction number 53, and (a), (b) and (c) are relevant there. 12(a) talks about whether the student is seeking to undertake a course that is consistent with their current level of education, so a consideration of the level of education. That is done in paragraph number 12, small (a), of the reasons by the tribunal including where the tribunal said:
“12….However, after completing less than four months of the Masters degree, the applicant cancelled his enrolment and applied to study significantly cheaper courses at the Certificate IV and diploma level at an education provider. That was not eligible under the streamline arrangements…..”
There is a reference and a consideration and a taking into account – it seems to me – of the level of the courses which is one of the matters for the tribunal to take into account under Direction 53, noting paragraphs 7 and 12, in particular 12(a): level of education, level of courses. Further, paragraph 14 of the decision, the last sentence in particular, it says:
“14……The Tribunal explored with the applicant his circumstances in India and Australia, his immigration and study history, and other relevant matters including the delegate’s concerns at paragraph 12”
The concerns in relation to the level of education, level of the course. And it refers there to “in India and Australia”, so 12(b) comes into it, relevance of the course to the student’s past or proposed future employment either in their home country or a third country. Paragraph 16 again is relevant, this time to ground 3, especially the last couple of sentences. The tribunal clearly – where it uses the words:
“16.…Noting that many students had successes and failures in the course of study, the tribunal questioned why a genuine student would abandon a higher degree course for a lesser course like commercial cookery after only one semester. The applicant responded he was advised to first do commercial cookery then do the masters course when he was more experienced which is why he applied to Spencer College.”
The point is, of course, here is a consideration and a taking into account by the tribunal of the matters required by Ministerial Direction number 53 including at this point the question of the two levels of the different courses and so on. In paragraph 21 the tribunal referred to the applicant’s future plans. Reference there is made to future employment. Particularly it is referred to in India. It is also referred to in Australia. There is a consideration. Again, paragraph 24 states:
“24. In the Tribunal’s view, its concerns as outlined above, including the applicant’s adverse immigration and study history, including the breach of condition 8516 of his previous visa; his change of course from Higher Education Section in Masters in Tourism and Hotel Management with an approved provider to a Vocational sector course in Cookery after just one semester; and his apparent wish to shift back to a Higher Education Sector course in order to be eligible for streamlined visa arrangements; raise the Tribunals concerns as to whether he is a genuine applicant for entry and stay as a student in Australia.”
Reference was made here again by the tribunal in relation to the different standards of courses, the different level of education, his history, his change of courses, and so on.
It may be that there is not a specific reference in the reasons to “remuneration” – precise terms – although there is a reference, for instance, 12(c) talks about:
“…remuneration the applicant could expect to receive in the home country or a third country compared with Australia.”
In paragraph 21 the tribunal mentions a good job in Australia. The applicant said he would do this job then go back to India to work in a hotel or open his own business. Reference was made to a job at a restaurant called Indian Whisper Restaurant on the Gold Coast. I reiterate what I said earlier that it is quite clear from Ministerial Direction number 53 itself is not to be used as a checklist. It is a guide only. The fact that there may not be a specific reference to comparable remuneration in one country or another or a comparison of remuneration in one country or another, the fact that there is no specific reference to that does not mean that this amounts to jurisdictional error because, as indicated earlier, what is required is for the tribunal in its decision to have regard in substance to the matters in Direction number 53.
I reiterate that I am satisfied that the tribunal, in fact, did have regard to such matters. Even the reference to the phrase or the use of the phrase “a good job in Australia”. That necessarily, it seems to me, implies or infers or refers to as part of that concept of a good job – it seems to me that a consideration of remuneration is probably bundled up in that in any event.
I am satisfied that when the entirety of the tribunal’s decision is considered, I am satisfied that the tribunal has indeed correctly considered the guiding factors in Ministerial Direction number 53. The tribunal, when it considered all of the relevant matters, while the tribunal was having regard to Direction number 53, the tribunal came to the conclusion that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Such a conclusion, as I have said, was open on the evidence before the tribunal including the references in paragraph 21 to the fact that whilst the applicant might have had family in India and that may have provided some incentive for him to return there, the tribunal considered that that incentive was outweighed by the applicant’s positive job prospects in Australia and the fact that the applicant told the tribunal he had supportive friends in Australia and a girlfriend in Australia.
Taking those matters into account and all of the evidence generally the conclusion reached by the tribunal was open to it, and no jurisdictional error has been identified by the grounds in the particulars, and the application should be dismissed with costs.
The orders will be as sought, paragraphs 41, (2) and (3).
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 11 April 2018
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