Patel v Minister for Immigration

[2016] FCCA 403

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 403

Catchwords:
MIGRATION – Student visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider relevant facts and law.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, s.474

Migration Regulations 1994, cl.572.223 of sch.2
Federal Circuit Court Rules 2001, r.44.12

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: KRUNAL HEMENDRABHAI PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 808 of 2014

Judgment of: Judge Cameron

Hearing date: 23 February 2016

Date of Last Submission: 23 February 2016

Delivered at: Sydney

Delivered on: 23 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C. Saunders of DLA Piper Australia

ORDERS

1. Pursuant to rule 44.12 of the Court’s Rules, the application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,300.00.

3. The Administrative Appeals Tribunal replace the Migration Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 808 of 2014

KRUNAL HEMENDRABHAI PATEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of India, applied for a Student (Temporary) (Class TU) subclass 572 visa on 20 November 2012. On 21 December 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy cl.572.223 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The matter is before the Court for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“Rules”) if the applicant does not have an arguable case against the respondents. If the applicant does not have an arguable case against the respondents, the authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

4. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it could be set aside: s.474 of the Migration Act 1958; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, to be successful in the present application the applicant had to demonstrate that it was at least arguable that the Tribunal’s decision was effected by jurisdictional error.

5. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. The criteria for the grant of subclass 572 visa are set out in pt.572 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy at the time a decision on his visa application was made was cl.572.223. At all times material to this matter it relevantly provided:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)     the applicant’s circumstances; and

   (ii)     the applicant’s immigration history; and

   (iii)   if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)    any other relevant matter; ...

   ...

Background facts

Visa application

1. As already noted, the applicant applied for a subclass 572 visa on 20 November 2012. His proposed course of study was a Diploma of Business. In refusing his application the delegate noted that since his arrival in Australia on 8 July 2007 the applicant had studied a number of courses in a variety of unrelated fields, namely information technology, community welfare, hospitality, business and accounting. The delegate also noted that the applicant was proposing to repeat the study of a Diploma of Business, having already undertaken that course between January 2010 and January 2011. Taking into account those circumstances, the delegate was not satisfied that the applicant was a genuine student and a genuine temporary entrant only. She found that the applicant might have been attempting to use the student visa program to circumvent permanent migration programs and/or maintain ongoing residence. The delegate therefore found that the applicant did not satisfy cl.572.223(1)(a) of sch.2 to the Regulations and refused his visa application.

Tribunal proceedings

1. The applicant sought review of the delegate’s decision by making application to the Tribunal.  At a Tribunal hearing on 4 March 2014 the applicant claimed:

   a)he was due to commence a Diploma of Management and an Advanced Diploma of Management.  The applicant provided to the Tribunal a letter of offer issued on 28 February 2014 which indicated that the courses would commence on 10 March 2014 and end on 12 April 2015;

   b)the Diploma of Management course would help him with his work at a fast-food restaurant and with his future employment.  One of his cousins in India owned a workshop which made and imported toys and he could work there as a manager.  He did not know the name of the business or whether it was on the internet;

   c)he had not studied since April 2013 because in March 2013 his maternal grandfather died and he had been unable to focus on his studies;

   d)he had also stopped studying because he had been worried about his sick father but his biggest concern had been the loss of his grandfather;

   e)he had been forced to discontinue some of his courses because he had been unable to pay the fees on time.  His grandfather’s death had prevented him from completing other courses; and

   f)he had enrolled in a Diploma of Business for a second time because he had not learnt enough when he first did the course.

The Tribunal’s decision and reasons

1. The Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay in Australia as a student temporarily. It therefore found that he did not meet cl.572.223(1) or 572.223(1)(a) of sch.2 to the Regulations. In reaching those findings the Tribunal:

   a)noted that since his arrival in Australia in 2007 the applicant had studied a variety of courses in unrelated fields, including in information technology, community welfare, hospitality, business and accounting.  The Tribunal was not satisfied that the applicant had provided a convincing explanation for his choice of studies and how they related to each other;

   b)found that the applicant was unable to explain satisfactorily his plans for his future career in India or how his studies would help him achieve those plans.  The Tribunal noted that the applicant had been vague about his plan to become a manager in his cousin’s toy business and found that his evidence indicated that he had given little thought to the proposal.  It was therefore not satisfied that the applicant did have any planned career in India;

   c)noted that the applicant had last studied in April 2013 and had only obtained an offer of enrolment on 28 February 2014, a few days before its hearing.  The Tribunal found the applicant’s explanation, that he had been affected by the death of his grandfather in 2013, to be unconvincing.  It was also not satisfied with the applicant’s explanation that his father was ill, noting that he had not raised this at the hearing until he was prompted; and

   d)found that the applicant’s enrolment in a Diploma of Business course in January 2013, a course which he had completed two years before, cast further doubt on the genuineness of his intention to remain in Australia temporarily.  The Tribunal did not accept the applicant’s explanation that he had enrolled in the course again because he had not gained enough knowledge when he took it previously.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Migration Review Tribunal made a jurisdictional error in denying the Applicant’s application for a Student (Temporary) (Class TU) visa in failing to consider all the facts and the law related to the Applicant’s application.

   Particulars:

   (a)The Tribunal considered that part of reason for affirming the decision under review was that the applicant applied to the Department of Immigration for the visa on 20 November 2012.  The delegate decided to refuse to grant the visa on 21 December 2012 and on 4 January 2013.

   (b)The reasons given by The Migration Review Tribunal reveals that the applicant was not a genuine application for entry and stay as a student because he did not satisfy the requirements of Regulations.

   ·The reasons given by The Migration Review Tribunal reveals that applicant studied a variety of courses – in IT, Community Welfare, Hospitality, Business, Accounting involving a number of unrelated fields.

   ·The Migration Review Tribunal did not consider that the Applicant enrolled for a course in Diploma of Business in January 2013, a course which applicant had completed two year earlier, cast further doubt on the genuineness of applicant’s intention to remain in Australia temporarily as a student.

   ·The Tribunal failed to take into account that the applicant was a genuine applicant in the present case.

2. The grounds set out in the application do not disclose an arguable case that the Tribunal’s decision should be set aside. 

3. The first part, the allegation, states that the Tribunal failed to consider all the facts and law relevant to the applicant’s application.  Although a number of particulars are set out below that allegation, none of them identifies a fact which it is said the Tribunal did not consider or an error of law which would arguably amount to jurisdictional error. 

4. Turning to those particulars individually, the first stated that the Tribunal considered that one of the reasons for refusing the visa application was that the applicant had made a visa application. With the greatest respect to the applicant, the Tribunal did not do that. It did not refuse his application because he had made a visa application. It affirmed the delegate’s decision because it was not satisfied that he met the criterion found in cl.572.223(1)(a). The particular points to nothing suggestive of error on the Tribunal’s part

5. Turning to the second particular and its three associated dot points, the first part of the paragraph states that the Tribunal was not satisfied that the applicant met the requirements of the Regulations. That is correct, but that sentence merely states the Tribunal’s finding and does not point to any error on the Tribunal’s part.

6. The first dot point displays the same shortcoming in that it does no more than repeat what the Tribunal said without identifying why the Court ought to consider the decision to be affected by jurisdictional error.

7. The second dot point really makes no sense at all because its first part contradicts its second part.  To the extent that the first part of the dot point stands independently and alleges that the Tribunal did not consider that the applicant enrolled in a Diploma of Business course in January 2013, the summary of the Tribunal’s decision set out earlier in these reasons demonstrates that the Tribunal did, in fact, consider that matter.  Consequently, that aspect of the allegation must fail on the facts.  As to the remainder of the dot point, the applicant invites the Court to undertake impermissible merits review and consequently does not identify an arguable case of jurisdictional error on the Tribunal’s part. 

8. The third dot point states that the Tribunal failed to take into account the fact that the applicant was a genuine applicant for a student visa.  That also is an invitation to review the merits of his visa application which the Court cannot do. 

9. At the hearing of this application, the applicant again raised the issue of the merits of his application and addressed issues concerning whether or not he was entitled to a visa.  Again, that is not a matter which can lead to a finding of jurisdictional error.

Conclusion

1. None of the matters which the applicant has raised in his application and at the hearing of this application raised an arguable case for jurisdictional error on the Tribunal’s part. 

2. Consequently, the application will be dismissed pursuant to r.44.12 of the Court’s Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 2 March 2016