Patel v Minister for Immigration

[2016] FCCA 2722

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2722

Catchwords:
MIGRATION – student visa – application for judicial review of decision by Migration Review Tribunal affirming decision of delegate of First Respondent refusing visa on grounds Applicant failed to satisfy “genuine temporary entrant” criterion – found no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.499

Migration Regulations 1994, cl.572.223 of Sch.2

Cases cited:

Minister for Immigration and Citizenship v MZYZA [2013] FCA 572

Singh v Minister for Immigration and Border Protection [2016] FCA 74

Applicant: MANISHKUMAR KANTIBHAI PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 288 of 2015

Judgment of: Judge Jones

Hearing date: 7 September 2016

Date of Last Submission: 7 September 2016

Delivered at: Melbourne

Delivered on: 7 September 2016

REPRESENTATION

Counsel for the Applicant: Self-Represented

Solicitors for the Applicant: Self-Represented

Solicitor Advocate for the Respondents: Ms Mitchell

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.

2. The application for judicial review filed on 16 February 2015 be dismissed.

3. The Applicant pay the First Respondent’s costs in the fixed amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 288 of 2015

MANISHKUMAR KANTIBHAI PATEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. This is an application for judicial review of the decision of the then Migration Review Tribunal (“the Tribunal”) dated 3 February 2015 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) to refuse to grant the Applicant a Student (Temporary) (Class TU) (subclass 572) visa (“the visa”). 

2. The Applicant is a citizen of India and on 7 August 2013 his then representative (“the first representative”), applied on his behalf for the visa. The Department of Immigration and Border Protection (“the Department”) sent an email to the first representative requesting that the Applicant provide further information, including, but not limited to, evidence that the Applicant was a genuine temporary student and to comment on adverse information (CB 26 to 37). The relevant aspects of that correspondence commence at CB 29 at the bottom of the page, under the heading “GENUINE TEMPORARY ENTRANT”, and the correspondent states:

   “According to information available to the department, you have spent a considerable amount of time in Australia on temporary visas in the last 6 years.  In order to meet the Genuine Temporary Entrant criteria you are required to demonstrate that you intend to remain in Australia on a temporary basis and will return at the end of your stay.  Considering the length of time already spent in Australia there are concerns you may be using the student visa as a means of maintaining de facto residence.”

3. There was then provided an outline of a statement of purpose that the Applicant was required to provide (at CB 30).

4. At CB 34, the delegate of the Minister set out the adverse information.  It commences under a heading “INVITATION TO COMMENT ON ADVERSE INFORMATION”. The adverse information was essentially as follows: why the Applicant enrolled in an education program leading to a Diploma of Hospitality qualifications; what he hopes to achieve on completing this course; the fact that his enrolment record indicates that his previous study was not a Diploma of Hospitality qualification; and an explanation as to how he considered further study in a Diploma of Hospitality relates to the Information Technology qualification that the Applicant completed when he first arrived in Australia.

5. The other aspects of the information requested, were what steps he had taken to assist himself to achieve his goal and the reason why he had changed his education path; in other words, the changes in coursework.  He was asked to respond to a question put in the following way:

   “Do you genuinely intend to study or are you using the student visa program visa as a means of maintaining de facto residence?”

6. The Applicant, through his first representative, responded on 5 September 2013. The response was sent by email and enclosed various attachments in relation to the questions (CB 38 to 102). 

7. The Applicant’s Statement of Purpose said as follows (CB 83 to 88): that he wanted to take his mother's useful kitchen tips and delicious secret recipes globally and start a trend in Indian treasured delicacies. He referred to these components being able to be incorporated in:

   “…my fast food joint.”

8. The Applicant says his intention to pursue a Certificate III in Hospitality will provide him with the skills and knowledge for an individual to be competent in skilled operations, including the application of discretion and judgment in a:

   “…real business scenario.”

9. The Applicant referred to his aim to establish hospitality outlets, such as restaurants, hotels, motels, clubs, pubs, cafes and coffee shops, and the Certificate III in Hospitality, he said, was designed to provide technical advice and support to a team. He referred to the Certificate IV in Hospitality (Supervision) and asserted that that would provide him with a suite of skills necessary to work in hospitality up to a supervisory role. He then referred to the Diploma of Hospitality qualification and argued that this would provide him with sound theoretical knowledge and an ability to use a range of specialised technical managerial competencies.

10. The Applicant dealt then with his reasons for choosing his education provider, the Australian Careers Education Pty Ltd, and then he went on to explain his reasons for studying in Australia, rather than in his home country. Essentially, these reasons were related to Australia's international reputation in relation to delivery of vocational and technical education. He dealt with his planned living arrangements in Australia, saying he belonged to a well-educated family and that his father was in the farming business, as well as his elder brother.

11. Finally, under the heading “The relevance of your course of studies to your academic and employment background”, the Applicant said that his family have a farming business, which is running successfully, but he has “always dreamt of opening my restaurant in my home country”. The courses, he asserted, were relevant to his dream of opening up a restaurant in his home country.

12. In relation to the Applicant’s ties to his home country, he referred to his mother and his relationship with her. In response to the invitation to comment on adverse information (commencing at CB 87), he said he wanted to open a café in his home country and his intended course would enhance his skills and bring it to the next level.  He then dealt with a request to explain how his educational path meets his career goals by referring to his dream of incorporating his study into his fast food joint and turning it into a global empire, Australia's reputation in the world and the relevance of having strong academic credentials to establish his business.

13. The Department once again approached the Applicant's first representative for further information on 10 October 2013.  Again, the focus was on requesting evidence that demonstrated that the Applicant was currently studying and why there appeared to be gaps in his study history (CB 103 to 104). 

14. On 25 October 2013m, the first representative emailed the Department attaching a copy of an Advanced Diploma of Management from the Australian Institute of Technical Training (“AITT”), dated 23 October 2013 (CB 110). Next, he provided a record of results for an Advanced Diploma of Management from the AITT (CB 111). There was also included an overseas student confirmation of enrolment for Certificate III in Hospitality at the Australian Careers Education from October 2013 to 5 October 2014 (CB 112).

15. Additionally, he provided a Confirmation of Enrolment for Certificate IV in Hospitality at the Australian Careers Education from 6 October 2014 to 5 April 2015 (CB 114).  Further, a certificate of enrolment for a Diploma of Hospitality from the Australian Careers Education from 6 April 2015 to 4 October 2015 (CB 116). 

16. Finally, an explanation in relation to his study gaps and how the courses would assist the Applicant to start his own restaurants was provided (CB 118). The Applicant in that refers to his intent to complete the course, both his intended courses of study, and refers to the deferral in commencing his intended course due to the following reasons:

    I had two units pending with Australian Institute of Technical Training and hence there was a delay in generation of statement of completion.  I took longer period than anticipated to complete the two units as the units were slightly intensive.  My education provider was accommodating and gave me grace period to complete my units.  I completed all requirements towards my studies on 30/09/2013 and was award the certificate on 23/10/2013. 

    This is a reference, of course, to the Advanced Diploma of Management.

17. On 22 April 2014, the Applicant was notified of the delegate of the Minister’s (“the delegate”) decision to refuse to grant him the visa that he sought, because on balance the delegate was not satisfied that the Applicant intended to genuinely stay in Australia temporarily, having regard to his circumstances and his immigration history.  On that basis, the delegate found that he did not meet cl.572.223 of Sch.2 to the Migration Regulations 1994 (“the Regulations”).

18. For the purpose of his application for review by the Tribunal, the Applicant engaged a new representative (“the second representative”), who applied on his behalf to the Tribunal for merits review. In a letter dated 9 October 2014, the Applicant was invited by the Tribunal to appear before it and give evidence and present arguments. Relevantly to the grounds for judicial review, a copy of the Ministerial Direction Number 53 was attached. He was also asked to provide further information. This information included a copy of his current confirmation of employment, evidence that he was currently enrolled in a course, evidence of past studies in Australia and an explanation of any gaps in his enrolment.

19. The second representative responded to this request on 10 November 2014 and sent a submission and further documents (CB 194 to 265).  At CB 198, the following was said by the second representative under the heading “Applicant's Claims and Evidence”:

    a)First, that the Applicant's visa was cancelled on 24 August 2010. The decision was appealed in the Tribunal, and at that hearing, the Applicant gave evidence that he felt sick in December 2008 and was subsequently diagnosed with Miliary Tuberculosis. The Tribunal in its decision found exceptional circumstances existed.  A copy of the Tribunal's decision was enclosed;

    b)Second, the submission said that whilst the Department was concerned with the Applicant's study history, because he had studied significantly different courses, the Applicant has made a concerted effort in continuing his study, and the nature of his study following the previous Tribunal decision (from early 2011 onwards) was consistent; and

    c)Thirdly, the submission referred to the fact that the delegate noted that the Applicant had been in Australia for some time. However, it was argued that this does not necessarily mean the Applicant is not a genuine student and further pointed out that the Applicant had gone through some serious medical conditions which were beyond his control.

    In conclusion, the submission argued that the Applicant is a genuine student, who is in Australia to study and gain qualifications which will shape his future. 

20. The Applicant, together with the second representative, appeared before the Tribunal and the Applicant gave evidence to the Tribunal.

Tribunal decision

1. The Tribunal in affirming the decision under review said it was not satisfied that the Applicant intended to genuinely stay in Australia temporarily.  This was the relevant criteria under cl.572.223(1)(a) of Sch.2 to the Regulations and hence the Tribunal found that the Applicant did not satisfy the criteria for the visa. 

2. The Tribunal, in making its findings, firstly found that the relevant subclass of the visa was a 572 visa. Next, that it was obliged to have regard to Ministerial Direction Number 53, but that the Direction was not intended to be used as a checklist, but rather to guide decision-makers to weigh up the Applicant's circumstances as a whole. It noted that it had had real concerns about the Applicant's study history. Since 2007, he had changed directions at least four times and, the Tribunal noted that, in response to these concerns, the Applicant stated that he had compassionate circumstances, because he previously suffered Tuberculosis, which was now inactive, and had completed all his previous courses, since having his previous visa revoked and then reinstated in 2011, and that his current direction, hospitality, was what he wanted to do.

3. The Tribunal did not accept that the Applicant's circumstances were exceptional. It found, at [19] of its decision record (CB 284), that his illness was not directly relevant and that his completion rate of courses since his previous visa revocation was not directly relevant, and that his current choice of direction (cookery and hospitality) do not marry with his studies in India or Australia. 

4. I note here that in his evidence the Applicant said that he had completed a Postgraduate Diploma in Multimedia in India and further that his first course in Australia was in relation to his Information Technology study, which is what he said he intended to do at the time. I should say that the Applicant's evidence is set out clearly in the decision record at [11] to [16], as are the concerns that the Tribunal Member raised with the Applicant at the beginning of his hearing.

5. The Applicant's circumstances were not accepted by the Tribunal as exceptional, as his evidence regarding his future restaurant in India did not require the sort of courses he was seeking in Australia. The Tribunal found the Applicant was evasive about his wife's application for permanent residency, that he had been in Australia for a considerable period, but had a low rate of achievement in the courses that he had previously enrolled in. His courses had been at a low level of vocational training, with no evidence of progression past that level.

6. At [20] of the Tribunal decision record, the Tribunal also considered  his family in India, and noted that the Applicant’s wife had been in India since October 2012, and that he had not visited her since that time, and consequently the evidence of his links with his family were matters that were given little weight by the Tribunal.

7. The Tribunal’s ultimate findings were set out at [21] of the Tribunal decision record, where the Tribunal Member said:

   I find that the above concerns lead me to consider that he has enrolled and studied in low level courses, in a variety of fields, to maintain residence in Australia, and to circumvent the migration program.  I have considered whether the applicant intends genuinely to stay in Australia temporarily, having regard to the factors specified in Direction 53.  When I weigh his potential circumstances in Australia, the value of the course to the applicant’s future, his immigration history and other relevant information provided by the applicant I am not satisfied that he does.  I have weighed his claims and those of his representative but overall I find that his circumstances lead me to find that there is little or no value to the applicant’s future in his proposed Australian study, that his future plans are vague and do not indicate that these are his genuine intentions, his considerable period in Australia on a variety of low level courses without much progression, all lead me to find that he is seeking to undertake courses in Australia as a means of maintaining ongoing residence in Australia and that the student visa program is being used to circumvent the intentions of the migration program in his case.

8. The Tribunal then went on, as I have indicated, to find that it was not satisfied that the Applicant intends genuinely to stay in Australia temporarily. The Tribunal, accordingly, found that the Applicant did not meet the criteria, subclass criteria of 572.

Judicial review

1. The Applicant has provided, in his application, detailed grounds of judicial review. He attended this hearing representing himself, without legal representation, and consequently I explained to him the nature of judicial review proceedings today, and then informed him I would now be asking him to explain his grounds of review.

2. There are three grounds of review. They are detailed and expressed in what I might say as legal language, which, as the Minister correctly observes, if the Court upheld, would give rise to jurisdictional error. They are as follows:

   1. The Tribunal erred in misconstruing and interpreting of “Direction No. 53, Assessing the genuine temporary entrant criteria for Student visa” pursuant to s.499 of the Act.

   Particulars

   a. The Tribunal’s interpretation of the Directions No. 53 was incorrect and not based on the available documents and evidence presented before the Tribunal.

   b. The Tribunal was influenced by the delegate’s findings rather than making its own findings based on evidence presented before the Tribunal.

   c. The Tribunal proceeded to list the factors in the Direction No 53 and used it as a checklist rather than referring to the direction as a guide.

   2. The Tribunal erred on the basis that it asked itself the wrong question by misconstruing the requirements of Direction No 53.

   Particulars

   (a) The Tribunal focussed its mind on the Direction 53 factors rather than applying the facts and evidence presented before the tribunal.

   3. The Tribunal erred in not considering clause 572.223.

   Particulars

   (a) The Tribunal erred in not considering cl572.223(1)(a)

   (b) The (sic) erred in not applying the facts when considering the Regulations

   (c) The Tribunal erred in saying the applicant was ‘circumventing the migration program” without any basis in law and fact.

   (d) The Tribunal failed to consider that the applicant completed all his courses.

3. I asked the Applicant to explain what he meant by the various grounds and, without being critical of the Applicant, it became apparent, very quickly, that he did not understand those grounds. For instance, in relation to the grounds that deal with Direction Number 53, he did not know what the Direction was. He informed me, after I asked him directly, that these grounds were not prepared by him, but someone else. I did the best I could to take him to various grounds which he may have been able to explain. For instance, ground 1(b), ground 3(b), ground (3)(c) and ground (3)(d). In relation to ground 3(d), it states that “the Tribunal failed to consider that the applicant completed all his courses”. The Applicant responded that he did complete all his courses and so he was able to respond to this.

4. When I then asked him to explain in a general way why he said the Tribunal’s decision was wrong, he said, firstly, that the Tribunal was saying that he was not a genuine student. He then noted that he had given evidence about the gaps. This is of course a reference to his serious medical condition, which was resolved in 2011. He said he gave evidence about his change in courses and why management skills were relevant, and cookery skills were relevant to his future intentions.  I said that I accepted that he gave this evidence to the Tribunal, but I pressed him to explain why the Tribunal decision was wrong. He was not able to say anything further.

1. I should say that the Minister filed a written outline of submissions on 24 August 2016. I asked the Applicant if he had read these submissions and he informed the Court that he had.

2. In my view, it is manifestly clear that the Applicant does not intend to prosecute his grounds of judicial review. He does not understand what they mean. This is unsurprising as they are grounds that are expressed in legal terms, which could give rise to jurisdictional error. It makes the task of the Court considering those grounds difficult, because there is nothing from the Applicant to assist the Court in understanding why he has raised those grounds of judicial review.

3. If I focus first on his oral submissions in relation to why the Tribunal decision was wrong, I am satisfied that, in essence, what he is saying is that he disagrees with the Tribunal decision, he disagrees with the outcome, and of course this cannot give rise to jurisdictional error. 

4. Another way of looking at his explanations given to the Court is that he says the Tribunal was wrong, because it failed to consider his evidence as to why he was a genuine student in the terms of the relevant criteria, that is, he intended genuinely to stay in Australia temporarily. In respect of that, it is very clear that the Tribunal did consider his evidence. It considered his evidence in relation to his explanation for his gaps. It considered his evidence about his ultimate goal and how he believed that the courses he proposed to study and has studied would contribute to this goal. However, the Tribunal simply did not accept that he genuinely intended to realise his dream, and it formed the view that his medical circumstances, which the Tribunal accepted, of course, caused a gap in study, were not relevant to the overall decision. As I indicated earlier, the Applicant’s Tuberculosis resolved in 2011.

5. Furthermore, the Applicant was put on notice, clearly by the delegate leading up to its decision, through the delegate’s decision, and by the Tribunal that there were real concerns about whether he was a person who intended genuinely to stay in Australia temporarily. It had concerns about the fact that the Applicant had applied as a secondary Applicant when his wife applied for temporary residence, and in the context of his other concerns, led the Tribunal to believe that the Applicant did not meet the relevant criteria.

6. On a fair reading of the Tribunal’s decision, I can find no evidence, which was before the Tribunal, either in the Applicant’s earlier statements or in the Applicant’s evidence before the Tribunal, which the Tribunal did not consider. I should say, very briefly, that I am satisfied that the Tribunal appropriately considered Direction Number 53, which was a Direction made under s.499 of the Migration Act 1958 (“the Act”). It understood that the Direction was not to be used as a checklist. It was not required to mention every factor listed in the Direction: Singh v Minister for Immigration and Border Protection [2016] FCA 74 at [28].  The Tribunal’s decision record discloses that it considered the considerations under the Direction as a whole and addressed them without treating them as a checklist.

7. There is no evidence in the Tribunal’s decision record that it was somehow influenced by the delegate’s findings or that its consideration was subsumed by those findings. The Tribunal simply had regard to the evidence provided by the Applicant to the delegate. As to whether the Tribunal overlooked any evidence, I accept the First Respondent’s submission, that a Court would not lightly infer that the Tribunal has overlooked evidence, and this is set out in the decision in Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [30]. However, as I have said earlier, on the face of the decision record, the Tribunal, in my opinion, comprehensively had regard to the evidence provided by the Applicant and considered it in a way that was appropriate to the task before it.

8. The Applicant was unable to say what evidence the Tribunal failed to take into account, and I have earlier dealt with my opinion about the manner in which the Tribunal assiduously considered the evidence that was before it.

9. There is little more I can say in relation to the written grounds of review that were included in the Applicant’s application. They concerned primarily the Tribunal’s approach in relation to Direction Number 53. I can see nothing wrong with the way in which the Tribunal approached its consideration of that Direction, nor in the way it applied that direction. 

10. Otherwise, the grounds assert that the Tribunal failed to consider cl.572.223 of Sch.2 to the Regulations, essentially because the Tribunal failed to consider the evidence or made statements for which there was no evidence. Although the Tribunal made a strong finding that it found the Applicant was circumventing the migration program, that finding, in my opinion, was open to the Tribunal on the evidence before it. It was, in my view, one that was not legally unreasonable. There were intelligible reasons given for its finding.

11. Accordingly, I find that each of the written grounds for review do not give rise to jurisdictional error. Further, the Applicant’s oral submissions, which I have referred to earlier, also do not give rise to jurisdictional error.

Conclusion

1. I dismiss the Applicant’s application for judicial review and make an Order for costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date:     21 October 2016