Prajapati v Minister for Immigration

[2015] FCCA 1356

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRAJAPATI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1356

Catchwords:
MIGRATION – Review of Migration Review Tribunal – applications for Student (Temporary) (Class TU) visas – not a genuine student – failure to provide evidence as to overseas student health cover – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.499

Migration Regulations 1994 (Cth), Schedule 2, cls.572.223, 572.223(1)(a)

Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3

First Applicant: HETAL LOMESH PRAJAPATI

Second Applicant: LOMESH NIRANJAN KUMAR PRAJAPATI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1570 of 2014

Judgment of: Judge Hartnett

Hearing date: 9 April 2015

Delivered at: Melbourne

Delivered on: 22 May 2015

REPRESENTATION

The applicants: The First Applicant

Counsel for the respondents: Mr Aleksov

Solicitors for the respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicants pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1570 of 2014

HETAL LOMESH PRAJAPATI

First Applicant

LOMESH NIRANJAN KUMAR PRAJAPATI

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court was a judicial review application of a decision of the Migration Review Tribunal (‘the Tribunal’) made on 8 July 2014. In that decision, the Tribunal affirmed a decision of the delegate of the First Respondent (‘the Delegate’) not to grant the First Applicant a Student (Temporary) (Class TU) Subclass 572 Vocational Education and Training Sector visa. The Application for judicial review was filed on 1 August 2014. By Response filed by the First Respondent on 14 August 2014, the First Respondent sought dismissal of the Application, the grounds of opposition being that the application for judicial review did not establish any jurisdictional error in the decision of the Tribunal. The First Respondent further sought costs in these proceedings consequent upon any dismissal of them, and in the sum of $5,800, which is a sum less than the provided for in Part 3, Schedule 1 of the Federal Circuit Court Rules 2001 (Cth).

2. The proceedings came before Registrar Allaway on 5 November 2014.  Amongst the orders he made that day, were orders providing for the applicants on or before 6 February 2015, to file and serve any amended application, including any additional grounds of review with complete particulars of each ground and any affidavits.  Further, the applicants by order 7 of the Orders made 5 November 2014 were to file and serve written submissions and a list of authorities 14 days before the final hearing.  The applicants have not amended the Application nor have they put any written submissions, or oral submissions of any substance, before the Court.  They filed an Affidavit sworn by the First Applicant on 1 August 2014. The Court has Written Submissions of the First Respondent dated 2 April 2015, and the evidence as contained in the Court Book filed by the First Respondent on 24 November 2014. 

3. The grounds of application are as follows:-

   “1.MRT decision wasn’t made by the explaination (sic) given by me.

   2.     MRT had given the decision only on the basis of evidence.

   3.I haven’t finished my diploma in ‘children services’ but just has (sic) finished Certificate III.  since then I haven’t worked anywhere because of my incomplition (sic) of study.  The only intension (sic) to stay here in Australia [is] just to finish my study.”[1]

   [1] Application filed on 1 August 2014 by the applicants.

4. The Court notes as to the grounds of application, that in respect of ground one there is no obligation on the Tribunal to accept any explanation given by an Applicant.  The obligation upon the Tribunal is to afford procedural fairness to the Applicant; to make relevant findings of fact; and to make a decision open to it on the basis of the evidence before it, including country information.  As to ground two, there is no error where a Tribunal makes its decision on the basis of the evidence before it.  Indeed, that is its role.  The third ground of the application is difficult to concede as a ground of review, but the Applicant may be claiming that the Tribunal failed to take into account relevant considerations.  The Tribunal, in fact, did take into account all relevant considerations and throughout afforded the Applicant procedural fairness.  It is not a matter for this Court to seek to find or create grounds of review for the applicants. The decision of the Tribunal is not effected by jurisdictional error for the reasons herein and the Court will dismiss the Application and make an order for costs against the applicants.

History

1. The First Applicant is a citizen of India.  She was born on 6 May 1987 and is aged 27 years.  She is married to the Second Applicant who is also an Indian citizen who was born on 13 December 1986.  He is now aged 28 years.  Prior to arriving in Australia, the First Applicant had obtained a Bachelor in Home Science at Maharaja Sayajirao University of Baroda.  She had completed that course in 2007. 

2. The First Applicant was first granted a Higher Education Student (Class TU) (Offshore) Subclass 573 visa on 16 May 2009.  It was valid until 25 August 2010.  The First Applicant arrived in Australia as a secondary visa holder on 30 May 2009 to join her husband, the Second Applicant. On 12 July 2010, the First Applicant was granted a further Vocational Educational Student (Class TU) (Onshore) Subclass 572 visa.  The visa was granted to study a Certificate IV in Information Technology at Kangan Batman Institute of TAFE and a Certificate IV in Business and Diploma of Management at Australian Education Academy Pty Ltd. That student visa was valid until 10 September 2012, and the First Applicant was the primary visa holder, with the Second Applicant being a secondary visa holder.  On 10 September 2012, the First Applicant lodged an application for a further Vocational Educational Student (Class TU) (Onshore) Subclass 572 visa.  Her intended course in respect of this student visa, now the subject of these proceedings, was a Diploma in Children Services provided by the Institute of Tertiary and Higher Education Australia. The commencement date was to be 8 October 2012 and the conclusion date 11 April 2014. 

3. On 11 September 2012, the Department of Immigration and Citizenship (as it then was) (‘the Department’) asked the First Applicant to provide evidence of English language requirements, a valid health clearance, overseas student health cover, academic transcripts and confirmation of enrolments for the courses that she was seeking to undertake.  Further, the First Applicant was invited to comment on adverse information regarding her having previously held a student visa, but not having undertaking the study associated with that student visa.  The First Applicant was also given an opportunity to comment on a study gap from 24 September 2011 until 7 October 2012.  A search by the Delegate of the First Applicant’s education history had been conducted using the Provider Registration and International Student Management System (‘PRISMS’), and the result indicated that the First Applicant was not studying in a registered course approved for study for international students between the period of 24 September 2011 until 7 October 2012. This was a study gap of 13 months.  Additional checks were conducted through PRISMS and it showed that the First Applicant was also not enrolled in a registered course approved for study for international students between the period of 25 September 2011 until 10 September 2012 and thus breached conditions 8202 of the previous visa, and for a significant part of the student visa duration. The First Applicant responded to the requests made of her. 

4. Departmental records indicated that the First Applicant commenced her Certificate IV in information technology at Kangan Batman Institute of TAFE on 6 July 2010, and that she ceased studying on 10 December 2010.  She then commenced a Certificate III in Children Services at Institute of Tertiary and Higher Education Australia Corporation Pty Ltd on 25 April 2011 and finished studying this course on 23 September 2011.  There was no evidence before the Delegate that she had commenced, nor continued, any further studies since 23 September 2011.[2] 

   [2] Note:  The Bachelor’s degree in Home Science was from the University of Baroda.

5. The Delegate noted that the Second Applicant never commenced a course in the Higher Education Sector in Australia despite holding a Higher Education (Class TU) Subclass 573 visa from 11 January 2008 to 12 July 2010. He became a secondary visa holder on his wife’s Vocational Educational (Class TU) Subclass 572 visa on 12 July 2010. 

6. The Delegate considered the factors that are set out in Ministerial Direction No. 53 ‘Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications’ (‘Ministerial Direction No. 53’) and placed weight on the First Applicant’s immigration history, including study history and any other relevant matter.  The Delegate noted that the First Applicant had been granted a Vocational Educational Student (Class TU) (Onshore) Subclass 572 visa on 12 July 2010 to study a Certificate IV in Information Technology and a Certificate IV in Business and Diploma of Management but that she only managed to commence the Certificate IV in Information Technology which she did not complete.

7. The Delegate concluded that the First Applicant was not a genuine student and was using the student visa programme to maintain ongoing residence in Australia. The Delegate also concluded the First Applicant did not genuinely intend to stay in Australia temporarily.  The Delegate gave weight to the fact that the First Applicant had sought to undertake a series of short inexpensive courses, having only completed a Certificate III in the 26 months she had been a primary student visa holder in Australia. 

8. On 12 November 2012, the First Applicant sought review of the Delegate’s decision in the Tribunal.  The Tribunal, on 4 June 2014, forwarded to the First Applicant an invitation to appear before it to give evidence and present arguments relating to the issues in the First Applicant’s case.  That invitation to a hearing was accompanied by various documents including Ministerial Direction No. 53.  The First Applicant provided a response to hearing invitation and submitted further information to the Tribunal and a written statement.  In that written statement, the First Applicant explained the gap in her enrolment history on the basis of her father’s ill-health and a consequent return to India, her inability to enrol in a course due to her not having the funds to pay for the health cover, and an unsuccessful miscarriage surgery.

9. The applicants attended for an oral hearing before the Tribunal on 8 July 2014.

The Tribunal decision

1. At the hearing before the Tribunal, the Second Applicant gave evidence that his claim for a student visa was based only upon him being a member of the family unit of the First Applicant.  There was no evidence before the Tribunal nor suggestion by the Second Applicant, that he had a claim for a student visa in his own right.  Accordingly, the Second Applicant’s visa would be granted or refused in accordance with the results of the First Applicant’s application.

2. The Tribunal affirmed the decision not to grant the applicants’ Student (Temporary) (Class TU) visas.  The Tribunal correctly noted that the Delegate had refused to grant the visas because the First Applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) because the Delegate was not satisfied the First Applicant was a genuine Applicant for entry and temporary stay in Australia as a student, in addition to the reasoning that the Applicant had failed to comply with a condition of her previous student visa. The Tribunal made its determination on its finding of a lack of satisfaction that the First Applicant intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal found the First Applicant to not meet cl.572.223(1)(a) of Schedule 2 to the Regulations. The Tribunal also found that the First Applicant did not meet the requirements of (with the exception of Subclass 580) the other subclasses within visa class TU. In respect of Subclass 580 (Student Guardian) visa, there was no material before the Tribunal to suggest the First Applicant met the prescribed criteria for that subclass.

3. The Tribunal acknowledged and considered the relevant subclass with respect to the claim of the First Applicant to be subclass 572. The Tribunal noted the issue in the case was whether the Applicant met the time of decision criterion in cl.572.223 of Schedule 2 to the Regulations. In considering whether the First Applicant satisfied the criterion, the Tribunal had regard to Ministerial Direction No. 53 made under s.499 of the Migration Act 1958 (Cth). In its Decision Record dated 8 July 2014 (‘Decision Record’) and at paragraph 8 therein, the Tribunal set out that it was to have regard to a number of specified factors in relation to:-

   “● the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ●the applicant’s immigration history, including previous applications for an Australia visa or for visas to other countries, and previous travel to Australia or other countries;

   ●if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ●any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.”

4. The Tribunal noted that since arrival in Australia, the First Applicant had completed a Certificate III in a Children’s Services course.  She had been enrolled in a Certificate IV course and a Diploma of Children’s Services course, but did not complete either.  The Applicant said, when asked, that she did not complete the Diploma of Children’s Services course because in May 2012, she went to India due to medical issues.  The Tribunal suggested the Applicant’s absence from Australia was only of three to four weeks duration, and queried why she could not complete the course on her return.  The Applicant responded that her visa expired in September 2012 and her college did not give her a confirmation of enrolment.  She started classes but was not enrolled.

5. The Applicant gave evidence that she had not studied in the two years prior to the hearing.  The Tribunal queried whether, having completed only one Certificate III qualification in four years since being granted a student visa, the Applicant was a genuine applicant for entry and stay temporarily in Australia as a student.  The Applicant maintained that she attended classes in the diploma course for about six months.  The Tribunal asked whether she had any results showing that she did so.  The Applicant produced none.  The Tribunal suggested to the Applicant that she had already had an opportunity to complete the diploma course by the date of the hearing and queried why the Tribunal would accept that the First Applicant would finish the course in the future when she had already had an opportunity to do so.  The Applicant failed to respond to that query.

6. In response to the question as to what motivations the Applicant had for returning to India after completion of her study in Australia, the Applicant said she would have a better career in India.  In response to further questions, the Applicant said she was not currently enrolled, or subject to an offer of enrolment, but hoped to study the Diploma in Children’s Services.

7. The Tribunal, in paragraph 16 of its Decision Record, set out the following:-

   “The tribunal noted that the applicant had provided documents with her student visa application to the Department that she graduated with a Bachelor of Science degree in May 2007 from a university in India.  The tribunal noted that, now some seven years later, the applicant was proposing to commence a diploma level course.  The tribunal queried whether that would seem in keeping with her previous qualifications.  The applicant referred to her previous study which she said had a child care component.  She said that she was interested in continuing in that area for a better career.  The tribunal asked the applicant why then she hadn’t studied in that field a degree level in Australia.  The applicant said that after marriage she hadn’t decided that she would study but then subsequently decided to do so.”

8. Under the heading “Consideration”, the Tribunal set out the study undertaken since the Applicant was first granted a student visa on 12 July 2010 and noted that between 12 December 2011 and September 2012, the Applicant did not formally enrol in any further courses.  The Tribunal said in paragraph 20 of its Decision Record:-

   “Initially at hearing the applicant claimed that she commenced the Diploma of Children’s Services course and studied for six months from early 2012 and was surprised to find out that she was not enrolled.  She claims to have not known the difference between an offer letter and a confirmation of enrolment.  She said she thought she could continue until her visa finished.  The applicant has provided no corroborative evidence of having attended classes in early 2012 for six months such as a statement from teachers or her education provider.  The statement she lodged from ITHEA provides no support for the applicant’s claims on that point. The applicant does not claim to have paid fees and has not explained adequately how she believed that she was in fact able to study and was enrolled without having paid the required fees.  The tribunal does not accept that evidence as plausible or truthful.  The tribunal notes that the applicant ultimately conceded that she could not continue in the course to (sic) she couldn’t afford to pay for the requisite costs of education and/or health insurance.”[3]

   [3] Migration Review Tribunal Decision Record dated 8 July 2014 at [20].

9. The Tribunal was satisfied the Applicant was not enrolled or studying between December 2011 after completing the Certificate III in Children’s Services qualification and 10 September 2012 when she enrolled in the Diploma of Children’s Services course scheduled to commence on 8 October 2012 and to be completed on 11 April 2014.  The Tribunal noted that the Applicant had not completed that course, and indeed at the time of hearing was not now enrolled in the course. 

10. The Tribunal considered the Applicant made no effort in order to study the Diploma of Children’s Services and did not accept the Applicant in fact commenced studying the course by attending for six months as she claimed to do.  The Tribunal had concerns about her credibility on that matter and found her evidence on that point and more generally regarding her enrolment as not reliable.  The Tribunal said at paragraph 22 of its Decision Record:-

    “The applicant’s failure to make basic efforts to pursue studies in Australia, in the tribunal’s view, weighs heavily against her claim to be a genuine applicant for entry and stay temporarily in Australia as a student.  She has a gap in studies and remained without enrolment in a registered course for a significant period of time.”

11. In respect of the documents provided from Kangan Institute to the Tribunal relating to the First Applicant’s enrolment in a Certificate IV in Information Technology (networking) in 2010, the Tribunal noted that documents showed the Applicant failed almost all subjects. 

1. In addition to the above matters, the Tribunal noted that the Applicant had failed to provide evidence as to overseas student health cover, and her claim that she was at one point unable to afford to pay for the required health insurance, was a factor that also weighed against her claim to be a genuine applicant for entry and stay temporarily in Australia as a student. 

2. The Tribunal concluded on the basis of these matters and having considered the Applicant’s circumstances, immigration history and other matters it considered relevant, it was not satisfied the Applicant intended genuinely to stay in Australia temporarily. 

Conclusion

1. The Tribunal took into account those matters relevant to its determination as to whether or not the Applicant met the criteria that were needed to obtain the visa.  It was guided by Ministerial Direction No. 53 which deals with assessing the genuine temporary entrant criterion for student visa applications.  The Tribunal weighed up the Applicant’s circumstances as a whole and made findings open to it on the evidence before it.  It did not fail to consider issues relevant to the matter to be decided by it.  Whilst the Tribunal came to a conclusion contrary to that which the Applicant asserts it should have concluded, this does not mean that the Tribunal failed in its task nor that it failed to take into account relevant matters. The Tribunal Decision was neither illogical or unreasonable and the fact finding of the Tribunal cannot be criticised. The Tribunal did put weight on the Applicant’s circumstances which indicated to it that the student visa was intended by the Applicant primarily for maintaining residence in Australia.  This was a matter contained in the Ministerial Direction No. 53. 

2. The Tribunal concluded the Applicant was not a genuine temporary entrant, and consequently did not satisfy cl.572.223 of Schedule 2 to the Regulations. That decision contains no jurisdictional error. Costs shall follow the event.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 22 May 2015