Rani v Minister for Home Affairs

[2019] FCCA 1706

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANI & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1706

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – whether the application has raised an arguable case for the relief claimed – no arguable case for the relief claimed – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), sch.2

Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

First Applicant: MANJU RANI

Second Applicant: MANOHAR LAL

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 714 of 2019

Judgment of: Judge Emmett

Hearing date: 19 June 2019

Date of Last Submission: 19 June 2019

Delivered at: Sydney

Delivered on: 19 June 2019

REPRESENTATION

Applicants: The first applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Siva Valliappan
(DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 714 of 2019

MANU RANI

First Applicant

MANOHAR LAL

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 25 March 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 25 February 2019 (“the Tribunal”) affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Student (Temporary) (Class TU) visa (“Student visa”).

2. The applicant attended a directions hearing before a registrar of this Court on 18 April 2019. On that occasion, the applicant was given leave to file an amended application, any further evidence and submissions in support of her application.

3. At the request of the first respondent, the matter was set down today for hearing, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), on the basis that the Court was not satisfied that the application raised an arguable case for the relief claimed.

4. The applicant was unrepresented before this Court, although had the assistance of an interpreter.

5. An affidavit by the applicant that annexed various documents that had been provided to the Tribunal was objected to by the solicitor for the first respondent on the grounds of relevance and rejected by me on that basis. 

6. I explained to the applicant that the role of this Court was very different to that of the Tribunal, and that the only issue before this Court was whether or not the Tribunal’s decision was affected by a mistake that went to its jurisdiction. I explained that if the Tribunal’s findings and conclusions were open to it on the evidence and material before it, then the fact that the applicant may disagree with them was rarely sufficient, without more, to demonstrate a mistake on the part of the Tribunal capable of being a jurisdictional error. I also explained the Court has no power to interfere with the Tribunal’s decision unless the Court is satisfied that the decision is affected by a jurisdictional error.

7. The applicant confirmed that she had not filed any other documents in support of her application to this Court and further confirmed that she continued to rely on the ground in her affidavit, filed on 25 March 2019, in support of her substantive application. That ground is as follows:

   “Department of Home Affairs (DOHA) had refused my Student Visa Application. I did provide the documentation/evidence in support of my application but Department of Home Affairs refused my Visa application. Then I lodged appeal against my Visa Refusal to MRT-RRT. Migration Review Tribunal - Refugee Review Tribunal (MRT-RRT) has made a decision of my review application (See Attached Annexure A). I believe Department of Home Affairs and MRT-RRT made Judicial Error which needs to be rectified.”

8. The background and the decision of the Tribunal are accurately summarised in the submissions of the first respondent, which are as follows:

   “Background

   2. The first applicant is a female citizen of India who first arrived in Australia on 2 June 2009 on a Class TU Subclass 572 visa.

   3. On 31 May 2017 the applicants applied for a Student (Temporary) (Class TU) (subclass 500) visa.

   4. On 27 July 2017 a delegate of the Minister refused to grant the applicants the visas. 

   5. On 30 July 2017 the first applicant applied to the AAT for review of the delegate's decision.

   6. On 19 March 2018 the second applicant applied to be made a party to the AAT proceedings.

   7. On 17 December 2018 the applicant's representative provided the AAT with the applicant's course transcript. 

   8. On 6 February 2019 the AAT wrote to the applicants inviting them to attend a hearing. 

   9. On 12 February 2019 the AAT reissued the hearing invitation moving the hearing to Sydney.

   10. On 21 February 2019 the applicant's representative provided a response to hearing invitation indicating the applicants and their representative would be attending. 

   11. On 21 February 2019 the applicant's representative provided the AAT with submissions, a confirmation of enrolment, statement of results and letter from the education provider.

   12. On 22 February 2019 the applicants attended a hearing and the AAT handed down an oral decision.

   13. On 12 April 2019 the AAT created a written record of its reasons. 

   The decision of the Tribunal

   14. The AAT noted that at the time of the application, Class TU contained two subclasses, Subclass 500 Student and Subclass 590 Student Guardian: [4].

   15. The AAT noted that in considering whether the applicant satisfied clause 500.212(a) it had to have regard to Direction Number 69: [10]. The AAT noted that the Direction indicated that the factors specified should not be used as a checklist but rather were intended to guide decision makers: [11].

   16. The AAT noted that it provided the applicant with a copy of information obtained from the Provider Registration and International Student Management database in accordance with section 359AA of the Act: [12]. The AAT noted that it explained the relevance and potential consequences of the AAT relying on that information to the applicant and that she indicated that she understood both the relevance and potential consequences. The AAT noted that the applicant indicated that she did not require an adjournment to be able to comment and was prepared to comment at the hearing: [13].

   17. The AAT noted that the applicant indicated to it, and the AAT accepted, that she had completed the English for Academic Purposes Course that was referenced in the PRISMS records: [14]. The AAT noted that the PRISMS records, as presented to the applicant, indicated that her CoEs for the English for Academic Purposes course was cancelled, and her completion of that certificate was not reflected in the delegate's decision. The AAT accepted that the applicant's evidence that she had in fact completed this course: [15].

   18. The AAT noted that its concern related to the length of time and number of courses the applicant had completed during her time in Australia. The AAT had placed some weight in the applicant's favour on her compliance with all of her visa conditions. The AAT considered, however, that if the applicant genuinely intended to study the Bachelor's Degree, she had ample opportunity and time to do so: [18].

   19. The AAT noted the applicant's evidence that there was competition in the Indian market and there was a perception that an Australian degree was valuable. The AAT also noted the applicant's evidence that there was some prestige with holding an Australian Bachelor's degree. The AAT accepted this conceptually may be the case, however it considered that this could be said of any applicant who possessed any Bachelor's degree, that is it comes with a degree of prestige: [19].

   20. The AAT considered the applicant had been unable to explain to the AAT specifically how having a Bachelor's degree in business would benefit her, in circumstances where she already held a significant number of other qualifications that she had obtained while in Australia: [20].

   21. The AAT noted that the applicant indicated that she had not had discussions in relation to prospective employment or employers at home. The AAT considered the applicant's evidence with respect to the potential benefit that the course would have to her future to be vague and generally lacking any specific detail that might have otherwise enabled the AAT to find that she had carefully considered the courses of study that she had undertaken and now proposed to complete: [21].

   22. The AAT noted that the applicant's husband accompanied her in Australia as a dependent on her student visa. The AAT noted that the husband stated that he earned approximately $10,000 a year and that the applicant and her husband stated that their family in India sent them money to facilitate the applicant's study: [22]. The AAT noted the applicant's evidence that her son continued to live in India with her sister and mother in law. The AAT considered the difficulty that confronted it was that while the applicant had ties to India she had been in Australia for a significant period of time, approaching a decade. The AAT noted that the applicant also had family with whom she resided in Sydney: [23].

   23. The AAT noted that the property interests of the applicants in India were reasonably insignificant and dependent upon future events: [24].

   24. Considering the applicant's circumstances as a whole, the AAT did not consider that the applicant had been able to explain the specific benefit that having an additional course would have to her employment prospects on return home: [25].

   25. The AAT noted that the applicant confirmed that as at the time of the delegate's decision in 2017 the applicant had spent 2,732 days in Australia and only 188 days outside Australia: [26].

   26. The AAT considered, weighing up the various factors and giving some weight to the fact that the applicant's spouse was included in her visa application and the length of time she had lived in Australia, that the factors presented serious concerns that the applicant's ties were now stronger to Australia and provided an incentive for her to remain in Australia indefinitely: [27].

   27. The AAT considered that the applicant was using the student visa to extend her stay in Australia, although the AAT did accept that she had made some progress through her course at the Holmes Institute: [28].

   28. The AAT formed a view that the applicant did not intend genuinely to stay in Australia temporarily: [29].

   29. The AAT found that the applicant did not meet clause 500.212(a) and the AAT for that reason was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by clause 500.212: [30].

   30. The AAT found that the criteria for the grant of a subclass 500 student visa were not met. The AAT noted that the applicant did not claim to meet the criteria for a subclass 590 student guardian visa and accordingly the decision under review had to be affirmed: [31]-[32].”

   (Footnotes omitted)

9. The ground relied on by the applicant was interpreted for her and she was invited to say whatever she wished in support. The applicant said on more than one occasion that the Tribunal thought that she had not completed her English course and that she was told that she had had confirmation of enrolments cancelled. Otherwise, the ground was unparticularised and has not otherwise identified any error capable of review by this Court.

10. To the extent that the applicant submits that the Tribunal thought that she had not completed her English course or that she had confirmations of enrolments cancelled, the Tribunal’s decision record makes clear that the Tribunal, in fact, accepted the applicant’s evidence that she had completed the English for Academic Purpose course that is referenced in the PRISMS record.

11. In considering whether the applicant met the mandatory requirements for her Student visa as reflected in cl.500.212 of sch.2 of the Migration Regulations 1994 (Cth), the Tribunal set out that clause as follows:

    “500.212

    The applicant is a genuine applicant for entry and stay as a student because:

    (a) 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 the parent, legal guardian, or spouse of the applicant; and

    (iv) any other relevant matter; and

    (b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to

    (i) the applicant’s record of compliance with any condition of a visa previously held by the applicant, if any; and

    (ii) the applicant’s stated intention to comply with any conditions to which the visa will be subject; and

    (c) of any other relevant matter.”

12. The Tribunal identified its concern as one relating to the length of time and the number of courses of study that the applicant had completed during her time in Australia. The Tribunal noted that between 2010 and 2017, the applicant had completed seven courses relating to printing and graphic arts, business management and marketing.

13. The Tribunal acknowledged that the applicant had complied with all of her visa conditions to date. However, the Tribunal considered that if the applicant genuinely intended to study the bachelor’s degree that she has recently embarked upon, considering the length of time she has been in Australia, she has had ample opportunity to do so.

14. The Tribunal found that the applicant was unable to explain to the Tribunal how having a bachelor’s degree would benefit her in circumstances where she already holds a number of qualifications obtained in Australia. The Tribunal also noted that it explored with the applicant whether she had had any discussions with prospective employers back home and noted that the applicant said that she had not.  The Tribunal found her evidence in relation to the potential benefit of the bachelor’s course as vague and generally lacking in any specific detail.

15. The Tribunal noted that the applicant’s husband’s visa is dependent on that of the applicant. The Tribunal accepted that the applicant does have ties to India. However, the Tribunal found that she has been in Australia for such a significant period of time, approaching a decade, and has family with whom she resides in Sydney.

16. Considering the applicant’s circumstances as a whole, the Tribunal did not consider that the applicant has been able to explain the specific benefit that having an additional course would have to her employment prospects on return home.

17. The Tribunal then referred to various incentives that it found to be significant for the applicant to remain in Australia, noting that she had been present in the country since 2009. The Tribunal found the factors to which it referred presented serious concerns that the applicant’s ties are now stronger to Australia and provide an incentive for her to remain in Australia indefinitely.

18. The Tribunal found that the applicant was using the Student visa to extend her stay in Australia. The Tribunal noted that at the time the applicant made her application for the Student visa she told the Department that the course would be completed in July 2019 and noted that at the time of the Tribunal hearing, the applicant would require an additional six months beyond the time she had told the Department she would require.

19. Based on these reasons, the Tribunal found that the applicant does not intend genuinely to stay in Australia temporarily and, therefore, does not meet the requirements of cl.500.212(a). In those circumstances, the Tribunal was not satisfied that the applicant is a genuine applicant for entry and stay as a student.

20. Accordingly, the Tribunal affirmed the decision under review.

21. The Tribunal’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave. The Tribunal’s findings appear to be based on rational grounds and arrived at after considering factors that were logically probative of the issues before the Tribunal. The Tribunal’s findings do not appear to be tainted by any failure to afford procedural fairness or be without an intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

22. Otherwise, there is nothing on the face of the Tribunal’s decision record to suggest that the Tribunal’s review, including the making of its decision, was conducted otherwise than in accordance with the relevant statutory regime.

23. Whilst I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. As stated above, the Tribunal referred to the relevant law in affirming the decision under review.

24. In the circumstances, I am not satisfied that the initiating application filed on 25 March 2019 and the ground supporting that application, upon which the applicant relies, has raised an arguable case for the relief claimed.

25. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application did not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 25 March 2019, should be dismissed with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  24 June 2019