Patel v Minister for Immigration - [2018] FCCA 862

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
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Anor (1996) 185 CLR 259
Adigbo v Minister for Immigration and Border Protection [2016] FCCA 2250
Nguyen v Minister for Immigration and Border Protection [2013] FCCA 1864

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 One application was actually withdrawn, but relevantly, on 6 October 2014 the applicant made an application for a student subclass 572 visa.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 862
Decision Date: 12 February 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by Mr Patel against the Minister for Immigration. The dispute centred on the Administrative Appeals Tribunal's decision to refuse Mr Patel a visa, with Mr Patel alleging that the Tribunal had committed jurisdictional error. The application was heard by Judge Howard in the Federal Circuit Court of Australia.

The primary legal issues before the Court were whether the Tribunal had failed to have regard to the matters specified in Ministerial Direction No 53, and whether the Tribunal had asked itself the wrong question in its assessment of Mr Patel's intention to remain in Australia temporarily. Mr Patel argued that the Tribunal's decision was flawed because it did not specifically address comparable remuneration in different countries and because it posed a question that was not determinative of the visa application.

Judge Howard reasoned that Ministerial Direction No 53 was a guide and not a checklist, and that the Tribunal was only required to have regard to its substance. The Court found that the Tribunal had, in substance, considered the relevant factors, including the prospect of remuneration, as evidenced by its reference to a "good job in Australia" and the applicant's own statements about his future plans. Regarding the second ground, the Court held that the Tribunal had correctly identified the question it needed to answer, which was whether the applicant genuinely intended to stay in Australia temporarily, as required by the Migration Act and Regulations. The Court noted that the reasons of a tribunal should not be scrutinised with excessive detail, and that the Tribunal's use of slightly different wording did not amount to jurisdictional error.

Ultimately, the Court was satisfied that the Tribunal had considered all relevant matters and had asked itself the correct question. The conclusion that Mr Patel did not intend to stay in Australia temporarily was open to the Tribunal on the evidence before it, including his job prospects in Australia, his supportive friends and girlfriend there, and his family ties in India. Accordingly, no jurisdictional error was identified, and the application was dismissed with costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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).”

Ratio Decidendi

Legal Principle Established

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).