PETER v Minister for Immigration

[2016] FCCA 2174

FEDERAL CIRCUIT COURT OF AUSTRALIA

PETER v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2174

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision– Visa – student visa – application dismissed – applicant to pay the respondent’s costs.

Legislation:

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) cl.572.332(1)

Applicant: JOHN PETER

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 128 of 2016

Judgment of: Judge Vasta

Hearing date: 8 August 2016

Date of Last Submission: 8 August 2016

Delivered at: Brisbane

Delivered on: 8 August 2016

REPRESENTATION

Solicitors for the Applicant: Legal Guru

Counsel for the Respondent: Ms A.J. Stoker

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Application filed 12 February 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 128 of 2016

JOHN PETER

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 12 February 2016, the Applicant asked this Court to review the decision of the Administrative Appeals Tribunal that was given on 18 January 2016.  There were five grounds for the application. 

   “(1) The Second Respondent failed to properly interpret 572.223(1)(a) of the Migration Regulations 1994 which was an error of jurisdiction;

   (2) The Second Respondent failed to take relevant considerations into account which was an error of jurisdiction; 

   (3) The Second Respondent took irrelevant considerations into account which was an error of jurisdiction;

   (4) The Second Respondent did not properly apply the law to the facts available and hence failed to properly exercise jurisdiction;

   (5) The second respondent asked itself the wrong question in determining the application the review which was an error of jurisdiction.”

2. The background to this matter is that the applicant is a citizen of India and first came to this country in March of 2009.  He was granted a student visa at that time.  That visa was to cease on 1 September 2011.  On 10 August 2011, the Applicant was granted a bridging visa and on 16 September 2011 he was granted a further student visa which was due to cease on 26 June 2013.  On 19 June 2013 he applied for a further student visa, and on that same day he was granted a bridging visa. 

3. On 16 August 2013 the delegate decided to refuse to grant a further student visa.  That seemed to have been done because the delegate found that he was not a genuine Applicant for entry and status as a student because he didn’t give sufficient evidence of financial capacity.  There were some aspects of that decision that were then looked at by an Administrative Appeals Tribunal, or at that stage it would have been the Migration Review Tribunal.

4. That Tribunal affirmed the delegate’s decision, but the applicant quite rightly brought the matter to the Federal Circuit Court, and the Minister quite properly conceded the point.  Therefore, on 30 April 2015, this court ordered, with the consent of both parties, that the matter be remitted to the Tribunal for reconsideration.

5. The Applicant appeared before the Tribunal on 8 December 2015 to give evidence and to present arguments.  At the end of that proceeding, the Applicant also submitted a number of documents that the Tribunal had asked for.  Those seem to have been submitted on 15 December 2015.  As I have said, on 16 January, the Tribunal gave its decision affirming the decision of the delegate. 

6. Clause 572.223(1)(a) relevantly states:

   “(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

   …

   (iv) any other relevant matter. 

7. In very helpful submissions, Ms Smith, who is appearing for the applicant, has put forward the argument that the Tribunal has failed to properly interpret that clause. 

8. What it seems her argument is based upon is that the Tribunal has, in effect, very early on asked the Applicant a question about his intention.  He has answered that inquiry in the following manner:  that he wants to study and go back to India, but, if the opportunity arose through other means, he would be applying to stay and live in Australia.

9. The applicant argues that the Tribunal has, in effect, used what was said by the applicant, in answer to that inquiry, to illustrate that, prima facie, the applicant does not wish to go back to India. The submission continues that the Tribunal, having come to that particular conclusion, has then gone about finding other evidence to, as it were, back up what was said.  The applicant says that, in doing that, the Tribunal has misinterpreted that clause. 

10. The applicant is correct in saying this: that if an Applicant says that they would stay in Australia if the opportunity arises, it does not mean that such an intention is contrary to cl.572.223(1)(a).  That is because it is quite open to any person to have other intentions. 

11. However, the important matter is that, primarily, they are here to study, and, if they cannot stay here in Australia, they would go back to India.  So in that respect, the Applicant is correct.  However, it doesn’t seem to me that the Tribunal has done what the Applicant has said that the Tribunal has done. 

12. Be that as it may, that was the question that was asked. It seems to me, upon a proper reading of what the Tribunal has done, that the Tribunal has instead looked at all of the evidence, not just the answer to that inquiry.  It seems to me that the answer to that inquiry had very little to do with what the Tribunal reasoned as to why it was not satisfied that the Applicant had satisfied that criteria.

13. It seems to me that what the Tribunal instead was doing was looking at the evidence and finding what were the proper inferences and conclusions for the Tribunal to make, and then to see whether that fitted the criteria.  In reading the reasons of the Tribunal, the Tribunal looked at the answers that the Applicant gave.   These answers included that if he went back to India he would have difficulty finding work;  that if he wanted to work somewhere in India doing what he thought he could do, he would have to pay bribes to be able to do, as it were, that sort of work.

14. The Tribunal then noted that the Applicant must necessarily have strong ties to Australia, because, having arrived in March 2009, the Applicant had not returned to India at any time during those intervening six, almost seven years, except for a two month period between November 2009 and January 2010. 

15. The Tribunal also noted that the Applicant had only completed an English course in 2009, and, very recently, a Diploma of Management in 2015.  Whilst the Tribunal noted all of the excuses that the Applicant had, including that since his refusal for the visa extension in 2013, he has been in limbo, the fact is that the Tribunal concluded that he should have done more than that. 

16. The Tribunal said that he should have more to show for his accomplishments of being here in the country for over six years than having completed simply those two courses.  The Tribunal noted that he had only enrolled at vocational level. The Tribunal also noted that the Applicant had no real career plan. 

17. It is often said that the main purpose of cl.572 is for people to come to this country from their country of origin, take advantage of the educational institutions and learnings to better themselves and to go back to their country and implement what they have learnt here in Australia.  There does not seem to be any such motivation on behalf of the Applicant in the reasons given by the Administrative Appeals Tribunal.

18. Therefore, it seems to me that when one looks at the interpretation of that particular clause, the clause has actually been interpreted properly. 

19. What the Applicant is really saying is that there has been a wrong or misguided conclusion by the Tribunal on the facts that were given to it.  It does not seem to me at all that the Tribunal can be said to have had their view coloured by the admission by the Applicant that he would stay in Australia if the opportunity arose. 

20. So for that reason I do not consider that there has been a wrong interpretation of the clause by the Tribunal.  But I will say a little bit more about that ground later.

21. The second ground has been that the Second Respondent, that is the Tribunal, failed to take relevant considerations into account. The third ground that the Tribunal took irrelevant considerations into account.  While such grounds often do make their way into this Court, there is a misunderstanding as to what those grounds actually mean. 

22. If a tribunal fails to take relevant considerations into account, that occurs this way: under the statute, the Tribunal is bound to mandatorily consider certain matters.  If the Tribunal has not mandatorily considered the matters that it has to, then it is said to have failed to take relevant considerations into account.  

23. Following on from that, if a Tribunal is prohibited from considering particular matters, then if the Tribunal, despite that prohibition, still considers those matters, then that Tribunal could be said to have taken irrelevant considerations into account. 

24. Those are the only circumstances in which either grounds that are headed as they are in grounds 2 and 3 will be successful before this court.

25. Ms Smith, who is acting for the Applicant, conceded that, realistically, neither of those matters were what it was that she was submitting.  Instead, she had submitted that, with regard to ground two, that the Second Respondent had in effect failed to take into consideration a particular fact.  This fact is, she submits, that since the refusal of the visa in mid-2013 that the Applicant has been in limbo, not knowing what his immigration status would be.  She submitted that it followed that it was quite understandable that “he hasn’t done too much”. 

26. But when one looks at paragraph 33 of the reasons, the Tribunal has actually taken that circumstance into account. Furthermore, the fact that the Applicant has actually, since the refusal of the visa and awaiting final determination, completed a diploma of business, shows that this is a matter that really does not show or constitute any form of jurisdictional error. 

27. As far as taking irrelevant matters into account, Ms Smith properly conceded that realistically, her complaint is that the Tribunal has placed an undue amount of weight on the fact of the number of courses completed or not completed by the Applicant was a factor in their decision-making. Her revised submission was that it wasn’t so much that they took irrelevant considerations into account; it was that the Tribunal should not have placed the weight that it did on those facts. 

28. Of course, that is a complaint that asks the Court to look at the merits of what the Tribunal has done, which is impermissible in a privative clause review.

29. The fourth ground, that the Second Respondent did not properly apply the law to the facts available, is really another way of saying that the Tribunal misinterpreted cl.572.223, and the fifth ground that the Second Respondent asked itself the wrong question is a further branch of that same ground.

30. As I have said, when looking at ground one, the Tribunal is set up to look at the factual matters before it.  Once it considers those matters, it is for this Court to be satisfied that the conclusions made by the Tribunal on the ultimate jurisdictional fact, that is, that the Applicant was not a genuine entrant, were in fact open. 

31. It is not incumbent upon this Court to agree with those conclusions.  Quite frankly, in this case, it may be seen by an independent arbiter that maybe the Tribunal was, to use the vernacular, a bit rough. 

32. But that’s not the point here.  The point is, “were those conclusions open?”  When one looks at the circumstances to which I’ve already described, the conclusion that the Applicant was not a genuine entrant was open.  Now, once it’s open, it doesn’t matter whether I agree or disagree.  I may vehemently disagree.  But if it is a conclusion that is open on that evidence, then there cannot be any jurisdictional error. 

33. The way in which grounds 1, 4 and 5 have been cast, realistically, are getting to a point where the real argument is that the Tribunal ought not to have concluded as it had or made the inference that it had.

34. As I have stressed, it’s not a matter of whether the Tribunal should have come to particular conclusions or should have drawn certain inferences, it is whether it could have made certain conclusions or could have drawn certain inferences. 

35. In this case, the Tribunal certainly could have done what it did.  There has been, therefore, no incorrect application of the law, and the questions that the Tribunal asked itself were the correct questions.  For those reasons, I do not find that there is any jurisdictional error, and I dismiss the application.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date:1 September 2016