Plaza v Minister for Immigration

[2018] FCCA 1641

FEDERAL CIRCUIT COURT OF AUSTRALIA

PLAZA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1641

Catchwords:
MIGRATION – Refusal of student visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth), cl.572.223

Applicant: VICTOR ANDRES ACUNA PLAZA

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 963 of 2017

Judgment of: Judge Vasta

Hearing date: 18 June 2018

Date of Last Submission: 18 June 2018

Delivered at: Brisbane

Delivered on: 18 June 2018

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 27 September 2017 be dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 963 of 2017

VICTOR ANDRES ACUNA PLAZA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 1 September 2017, the Administrative Appeals Tribunal (“the AAT”) affirmed a previous decision of the delegate of the Minister not to grant the Applicant, Victor Andres Acuna Plaza, a student visa. 

2. The background to this is, in short compass, that the Applicant is a resident of Peru and had come to Australia in October 2012 to study business.  He had over 12 years’ experience, at that stage, travelling around the world working on cruise ships and the like.  He had visited many countries.

3. He obtained the certificate IV in business, but he decided to change his studies to cooking. The Applicant told the Tribunal that he needed to improve his English proficiency because he was more familiar with the “United States form of language” rather than the “Australian form of the language”.  He said that he decided to study cooking as he planned to return to Peru and pursue that as a career. 

4. He told the Tribunal that he was advised to obtain qualifications in an English-speaking country.  When he appeared before the AAT, he told the AAT that he required a further six months to complete his studies, after which he would be happy to go home. 

5. He said that he decided to become a chef because he was working with a good chef in Australia and felt proud of the work he was doing.  The Tribunal asked the Applicant why he was studying to be a chef when he already had a great deal of practical experience, and he told the Tribunal that a lot of different employers require a diploma from an English-speaking country. 

6. The Applicant also informed the Tribunal that he wanted to return to Peru in order to look after his parents because that is his responsibility as the son.  He said that he has an offer from a chef there in Peru.  According to the Applicant, the owner of the restaurant that wants to employ him in Peru used to work on the Gold Coast and is willing to wait until the Applicant completed his qualifications. 

7. The Tribunal asked the Applicant why he chose to study in Australia. He said that it was because the food was more pure and he liked Australia after he had visited on cruises.  He said that he does not have any ties to Australia and is quite happy to leave.  He will, after completing his certificate III and IV in Australia, be a qualified chef. 

8. In Australia, the Applicant has worked as a casual chef in Brisbane which was when he had an accident and ceased working.  He has returned to Peru once during the time that he has been in Australia. 

9. The sister of the Applicant provided a letter in support of the application.  She said that the Applicant would finish his studies and he would come back to Peru to look after the parents.  She said that, due to the advanced stage of her parents, the Applicant needed to return.  She said that their father owned three properties in Lima and other parts of the country and she said that the Applicant would be able to undertake a project of some kind on his return because the parents’ properties were in tourist areas. 

10. The Tribunal actually asked the sister what the Applicant’s plans were on his return to Peru, and she said that he has the opportunity to work in Lima but there was also an opportunity for him to start a restaurant or something similar in one of the family’s properties.  The sister said that she hoped that those projects were still in the Applicant’s mind. 

11. The Tribunal put information to the Applicant pursuant to s.359A of the Migration Act 1958 (Cth) (“the Act”). This information was that he said he had been offered work by a prestigious restaurant in Peru whereas his sister gave evidence that he was planning to develop properties owned by his father into a restaurant or hotel. In answer to that information, the Applicant said that he wants to improve his management skills and learn from the restaurant offering him work in Peru, and his plans for the future would be more difficult if he does not learn from them.

12. He said that he intends to work in the restaurant for a year to a year and a half, but what his sister said in her evidence was true.  The migration representative who was with the Applicant asked to make further submissions after the hearing, and the Tribunal agreed with that.  Those submissions were made. 

13. The Tribunal then had to assess all of that evidence against the criteria in cl.572.223 which allows for the issuing of a visa if the Minister is satisfied that the Applicant is a genuine applicant for entry and stay as a student because the Minister is satisfied that the Applicant intends genuinely to stay in Australia temporarily; having regard to the Applicant’s circumstances, the Applicant’s immigration history and any other relevant matter.

14. The Tribunal said that it did consider the Applicant’s circumstances in Peru, his potential circumstances in Australia, his immigration history and all other relevant information, and that included the post-hearing submissions. 

15. In particular, there was a letter confirming the completion of the certificate IV in commercial cookery; a letter of offer of employment from Central Restaurante in Lima, Peru, and a second letter from the owner of the restaurant; a letter of support from Imagine Education in Queensland; letters from the Applicant’s sister and father; a further submission from the representative; and, some other Spanish documents which appear to relate to properties owned by the Applicant’s family in Peru. 

16. The Tribunal considered all of that evidence and went through it in some detail.  The Tribunal took into account that the Applicant had been in Australia for more than four years and has completed courses in business and commercial cookery, and has been employed in restaurant positions in Australia as a casual chef, a sous-chef, including a senior sous-chef, and head chef.  The Tribunal considered the value of the courses undertaken in Australia to the Applicant’s future. 

17. As outlined, the Applicant has undertaken courses in business studies to diploma level and commercial cookery to certificate IV level.  Based on the subjects undertaken during the business programs, the Applicant has studied general business management subjects in addition to his cooking qualifications.  The Applicant claims now that he is required to obtain a diploma in hospitality in order to take up the offer of a chef’s position in Peru. 

18. It was submitted by the Applicant that this claim was supported by a letter from the owner of the business concerned.  Based on the Applicant’s past work history, the Tribunal was not satisfied that the addition of a further diploma in hospitality management would be necessary or of any benefit to the Applicant’s career. 

19. The Tribunal noted that the letter from the owner of the restaurant in Lima said that the Applicant needed to have a diploma in hospitality or higher qualification, but there is no evidence that the Applicant’s past work history has been considered. 

20. In addition, the letter says that once the Applicant finishes the diploma in hospitality, the Applicant would then become a fully qualified chef.  The Tribunal noted that the fact was that the Applicant had already studied commercial cookery at certificate III and IV level, and since the profession of chef does not necessarily require formal certification, the Applicant has already obtained Australian vocational qualifications in addition to his extensive practical experience. 

21. The Tribunal accepted the Applicant has some ties to Peru due to his parents and sister, but has not accepted that as sufficient incentive for him to return. 

22. The Applicant had been away for 17 years living and working internationally and has only returned once since coming to Australia. 

23. The Tribunal was not satisfied that the Applicant genuinely intends to return to his own country once he completes a further diploma course. 

24. On that basis, the Tribunal was not satisfied that the Applicant intended to genuinely stay in Australia temporarily and therefore the criteria under cl.572.223(1)(a) had not been met.

25. The Application before this Court listed seven grounds. 

26. The Applicant himself who has appeared today with the aid of an interpreter, though it seems to me he has not really needed the assistance of the interpreter to any great extent, has said that those seven grounds were ones that he and his migration agent came up with.  They are:

    “1. The Tribunal fell into jurisdictional error when it gave excessive weight to the consideration of the applicant’s returning to his home country.”

27. It is trite to say that what weight a Tribunal gives to any particular consideration is a matter for the Tribunal. As long as there has been a consideration of the fact, then what weight the Tribunal gives to that matter will not found a jurisdictional error, therefore there is no merit in ground 1.

28. Ground 2:

    “The Tribunal fell into jurisdictional error by not complying with s359(A)(1) of the Migration Act 1958 (the Act).”

29. The particulars for that ground are that the Tribunal failed to comply with s.359A of the Act in its decision to affirm and that they based the decision to affirm wholly or partly based on the fact that the Applicant had extensive experience of working as a cook and/or chef. This was not a matter that the Tribunal needed to put to the Applicant. It was part of the material that the Tribunal had to consider.

30. The natural corollary of this ground would be that any time a Tribunal comes to a decision that it would affirm the decision of the delegate, in effect, they must give the Applicant a draft of their reasons and therefore allow the Applicant to comment on that. 

31. That is not the purpose of s.359A.

32. The purpose of that section is to ensure that the Applicant has an opportunity to fairly answer allegations that are put to him. The Tribunal understood this and, in putting to the Applicant the difference between the evidence of his sister and the evidence that he had put forward that he had a job offer, was compliant with its duty under s.359A. The Applicant gave an answer to that which, by and large, may have been an answer that was not rejected at all by the Tribunal.

33. No other such circumstance arose in this matter where the utilisation of s.359A was appropriate. I do not see that there is any merit in ground 2.

34. Ground 3 is:

    “The Tribunal fell into jurisdictional error when it made an erroneous finding of fact on a point of importance.” 

35. The particulars for that are a finding of fact that the Applicant had ‘completed’ a Diploma of Business in Australia and then “changed direction and decided to pursue Cooking and Hospitality.” 

36. The particular further says:

    “That the Tribunal took this irrelevant fact into consideration and then proceeded with the assumption that completing an Australia Diploma in Hospitality will not be necessary or of benefit to his career…”

37. The particular goes on to say:

    “…Whereas the applicant clearly had a job offer lined-up from an employer based in his home country who clearly required him to complete Diploma in Hospitality.”

38. I cannot see that that was an erroneous finding of fact.  It was not a finding of fact.  It was an observation, a conclusion come to on the evidence that the Tribunal could find no practical relevance for a diploma of hospitality when the Applicant had sufficient educational qualifications and quite an extensive degree of past experience.

39. In reality, it was a finding of “non-acceptance” of the necessity of the Diploma in Hospitality rather than an actual finding of a fact.

40. I do not find that there was an erroneous finding of fact and, therefore, there is no merit in ground 3.

41. Ground 4 is the Tribunal “fell into jurisdictional error when it took the irrelevant fact into consideration”. Such a conclusion was not irrelevant; it was a conclusion based on the evidence and could not have been at all categorised as irrelevant. Therefore, this no merit in ground number 4.

42. Ground 5:

    “The Tribunal failed to consider the additional documents sent to it via email before the decision was communicated to the applicant.”

43. There is no evidence that the Tribunal failed to consider those documents as it alluded to having considered all of that material and actually listed it. I cannot see that there is any merit in this ground. 

44. Ground 6:

    “The Tribunal failure to giver (sic) genuine, proper and realistic consideration to the matter including making an adequate inquiry as to the facts.”

45. This seems to dovetail into ground 7, which is:

    “By not making adequate inquiry into the facts, the tribunal failed to afford procedural fairness to the applicant and therefore failed to discharge its statutory duties and fell into jurisdictional error.”

46. The particular for those two grounds are:

    “a. By not considering the additional supporting documents which were submitted by uploading to the Tribunal’s online system before the applicant was notified, the Tribunal has not afforded procedural fairness to the applicant. The documents contain support letter from the applicant father and sister providing more clarification about the applicant’s return to Peru upon completion of studies.

    b. By not making an adequate inquiry as to the facts that the applicant never completed his Cert IV in business qualification in Australia and therefore never successfully obtained Diploma of Business in Australia, the Tribunal failed to discharge its statutory duties of making adequate inquiries about the pivotal facts which ultimately led to jurisdictional error.”

47. It seems to me, as I have said, that the Tribunal has noted that it has looked at all of those matters and considered those matters in their consideration.  It seems to me that those matters have been considered.  There is no jurisdictional error that arises.

48. When the Applicant came before me today, I inquired of him as to whether he knew the difference in this proceeding between a review and an appeal.  I explained to him that this was a review and not an appeal; something that I am fairly sure that Registrar Lynch spoke to him about when he appeared before her on 23 October 2017.

49. The Applicant did seem to have a very good understanding of the difference.  When I asked what he wanted to say about the grounds that were before the Court, he told me that:

    “I just want a couple of weeks to pay off some debts.  I do not want to leave this country without a clean slate of credit.”

50. That is not a matter that I can look at.  All I can look at is whether or not the Tribunal has undertaken its statutory duty as has been laid out or whether the Tribunal has made a jurisdictional error which would mean that the Tribunal would have to reconsider the matter. 

51. As I have said, I have gone through the matter and that I can see no jurisdictional error in any way, shape or form. 

52. Therefore, I dismiss the application for review with costs in the sum of $5,000.00.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  25 June 2018