Reena v Minister for Home Affairs

[2018] FCCA 2057

FEDERAL CIRCUIT COURT OF AUSTRALIA

REENA v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2057

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine temporary entrant for study – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.476, 499

Migration Regulations 1994 (Cth)

Cases cited:

Ghimire v Minister for Immigration [2014] FCA 899

Minister for Immigration v SZLIX (2008) 245 ALR 501

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

SZHVM v Minister for Immigration (2008) 170 FCR 211

Applicant: REENA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 705 of 2018

Judgment of: Judge Driver

Hearing date: 27 July 2018

Delivered at: Sydney

Delivered on: 27 July 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Evans of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 705 of 2018

REENA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant, Ms Reena, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 21 February 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Reena a temporary student visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 19 July 2018.   

3. Ms Reena is a citizen of India who arrived in Australia on 29 September 2008 as the holder of a student (Subclass 573) visa.  Ms Reena has held a student (Subclass 573) visa for the duration of her time in Australia and has completed the following courses during that time:  Bachelor of Business; Certificate IV of Accounting; Diploma of Accounting; Advanced Diploma of Management; Certificate III in Printing and Graphic Arts; and a Diploma of Printing and Graphic Arts.[1]

   [1] Court Book (CB) 70

4. On 12 September 2016, Ms Reena applied for a further student (Temporary) (Class TU) (Subclass 500) visa on the basis of her enrolment in a Graduate Diploma of Management at Group Colleges Australia.[2]

   [2] CB 1-19, 25-38

5. A primary criterion that applied for the grant of the student visa was clause 500.212 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which required Ms Reena to be a genuine applicant for entry and stay as a student (the Genuine Temporary Entrant criteria).

6. On 25 October 2016, the delegate refused to grant Ms Reena a student visa. The delegate found Ms Reena had not provided any information in support of her application to demonstrate that she met the Genuine Temporary Entrant criteria. The delegate considered, amongst other things, Ms Reena’s immigration history and the benefit of Ms Reena’s proposed course to her future, which she found was at a lower level to her previous studies. The delegate found that Ms Reena appeared to be using the student visa program to remain in Australia rather than to further her education as a genuine student and refused to grant Ms Reena a student visa because she did not satisfy clause 500.212 of the Regulations.[3]

   [3] CB 68-72

The Tribunal

1. On 3 November 2016, Ms Reena applied for review of the delegate’s decision.[4]  Ms Reena was represented in connection with her review by a registered migration agent and provided the Tribunal with a copy of the delegate’s notification letter.[5]

   [4] CB 73-74

   [5] CB 74

2. On 21 November 2017, the Tribunal invited Ms Reena to attend a hearing scheduled before it on 12 December 2017.[6]  The invitation requested, amongst other things, that Ms Reena provide the Tribunal with a written statement within seven days addressing the issue of whether she was a genuine applicant for entry and stay as a student with reference to Direction No. 69[7] and provided Ms Reena with a copy of the Direction.[8]

   [6] CB 104-106

   [7] At CB 105

   [8] CB 111-115

3. On 7 December 2017, Ms Reena’s representative provided numerous further documents in support of her review application[9] including a Statutory Declaration signed by Ms Reena addressing the Genuine Temporary Entrant criteria.[10]

   [9] At CB 120-187

   [10] CB 185

4. Ms Reena attended the Tribunal hearing on 12 December 2017 with her representative.[11]

   [11] CB 188-190

The Tribunal’s decision

1. On 21 February 2018, the Tribunal affirmed the decision under review.[12]

   [12] CB 199-204

2. After setting out the relevant background to the matter, the Tribunal identified that the issue on the review was whether Ms Reena was a genuine applicant for entry and stay as a student as was required by clause 500.212 of the Regulations.[13]

   [13] CB 201, [10]

3. The Tribunal set out the relevant law[14] and correctly observed that it was required to have regard to Direction No. 69 and assess Ms Reena against the list of “specified factors” in that Direction.[15]

   [14] At CB 202, [11]

   [15] CB 202, [12]; s.499(2A) of the Migration Act 1958 (Cth) (Migration Act)

4. The Tribunal also correctly appreciated that the factors were not to be used as a checklist but were intended to guide decision makers to weigh up an applicant’s circumstances as a whole.[16]  Those factors were set out in the Tribunal’s decision.[17]

   [16] CB 202, [13]; see Item 1, Part 2 of Direction No. 69; Ghimire v Minister for Immigration [2014] FCA 899 at [3]

   [17] CB 202, [12]

5. The Tribunal acknowledged that Ms Reena had undertaken and successfully completed various courses in Australia and that, despite the delegate’s decision, she had progressed in her current course.  However, the Tribunal found that was the “general expectation” of all applicants in Australia on student visas.[18]  The Tribunal had regard to Ms Reena’s oral evidence that she came to Australia to “get” an international degree and found she achieved this goal with the award of a Bachelor of Business in 2016 and indicated that it had difficulty understanding the benefit of her proposed course of study to Ms Reena’s future career.[19]

   [18] CB 202, [14]

   [19] CB 202-203, [15]

6. Ms Reena’s evidence to the Tribunal at the hearing was that she had changed her enrolment to undertake a Masters of Business Administration (MBA).  The Tribunal noted Ms Reena claimed she had changed her enrolment after receiving the delegate’s decision which raised concerns about her enrolment at the Vocational Education and Training level because she had already attained a Bachelor degree.  The Tribunal was concerned by Ms Reena’s evidence because after nine years of study in Australia it expected she would have knowledge about the Australian education system and personally have knowledge of further courses that would benefit her career.[20]

   [20] CB 202-203, [16]

7. The Tribunal had regard to Ms Reena’s written and oral claims about her stated career goal, that she wanted to return to India to manage her father’s nurse training business, and her oral evidence that her father had operated his business for 15 years, he had only attained “year 10 matriculation” and had no formal qualifications in nursing.  On the basis of this evidence, the Tribunal was not satisfied Ms Reena needed further qualifications for her proposed future career and considered her existing qualifications provided her with sufficient skills to meet her career goal.[21]

   [21] CB 203, [17]

8. Further, having regard to Ms Reena’s existing qualifications and her guaranteed employment in her father’s business, the Tribunal was also not satisfied that Ms Reena’s further studies would assist her to obtain better employment in India in the future and it found it difficult to understand why she could not undertake her further studies in her home country.[22]

   [22] CB 203, [18]

9. The Tribunal noted Ms Reena had changed her career path since arriving in Australia and observed that “reasonable allowances” should be made for such changes.  However, the Tribunal was concerned that, as Ms Reena was presently working as a junior accountant, Ms Reena was building a “career pathway” in Australia and did not intend to remain in Australia temporarily for the purposes of studying.[23]

   [23] CB 203, [19]

10. The Tribunal was concerned by the length of time Ms Reena had been in Australia and noted she last departed Australia in 2012.  Although the Tribunal found this was not necessarily “determinative”, it considered it suggested Ms Reena saw Australia as a place to live and build a career rather than a place to study temporarily.  Additionally, having regard to Ms Reena’s oral claim that she intended to return to manage her father’s business in India and had held such a desire for three to four years, the Tribunal was concerned that she had not returned to India to visit the business to assess whether her present skills could be applied or engaged with the business.[24]

    [24] CB 203, [20]

11. The Tribunal then considered Ms Reena’s family ties to her home country, noting in particular that her husband lived in India.[25]  The Tribunal found Ms Reena had returned to India twice since she was married just before coming to Australia in 2008.  It noted the last time she returned in 2012 for a “couple of months” and, as Ms Reena had been apart from her husband for over five years, questioned the significance of this relationship.[26]  The Tribunal also found that Ms Reena’s parents lived in India but her two sisters lived and studied in Canada and neither her family nor her husband had visited her in Australia.  On the basis of the amount of time spent away from India, and her infrequent visits to her husband and family, the Tribunal was not persuaded that her family or husband acted as a significant incentive to return to India.[27]

    [25] CB 203, [21]

    [26] CB 204, [21]

    [27] CB 204, [21]

12. The Tribunal also had regard to Ms Reena’s present employment in Australia and that she had lived in rented accommodation for four or five years with a friend.  On the basis of the length of time Ms Reena had lived in Australia the Tribunal considered Ms Reena would have developed “some community and social ties”, and found Ms Reena may have incentives to remain in Australia.[28]

    [28] CB 204, [22]

13. Overall, the Tribunal was not satisfied Ms Reena was genuine “in her reasons” for studying in Australia and found she was using the student visa program to maintain residence in Australia.  In reaching this conclusion the Tribunal expressly had regard to Ms Reena’s previous successful study and ties to India but found that these considerations did not outweigh its concerns.[29]

    [29] CB 204, [23]

14. On the basis of its above findings, the Tribunal was not satisfied that Ms Reena intended to genuinely stay in Australia temporarily and did not satisfy clause 500.212(a) and the criteria for the grant of a student visa.[30]  As Ms Reena did not meet an essential requirement for the grant of a student visa, the Tribunal affirmed the decision under review.[31]

    [30] CB 204, [24]-[25]

    [31] CB 204, [25]-[26]

The present proceedings

1. These proceedings began with a show cause application filed on 16 March 2018.  Ms Reena continues to rely upon that application.  There are two particularised grounds in the application:

   1.The Tribunal, based on department of immigration and Border Protection 'DIBP' decision, denied the Applicant appeal that She has fulfilled significantly the student visa application requirement and meet the visa application of student (Temporary) (Class TU) visa hence misconstrued the requirement by the DIBP.

   Particulars

   1.1The Tribunal misconstrued the requirement by the DIBP decision to refuse the visa under clause 500.212 in Schedule 2 of the migration Regulations

   1.2The Tribunal failed to consider the Applicant has complied substantially all student visa conditions hence denied procedural fairness at the time of tribunal hearing

   1.3Applicant obeyed substantially student visa condition hence Tribunal failed to consider the applicant intends genuinely to stay in Australia temporarily.

   2The Tribunal committed jurisdictional error when took into account irrelevant considerations by DIBP and constructively failed to consider the requirement of visa grant was met hence misconstrued the criteria or applied wrong test regarding the grant of the visa application of subclass 500.

   Particulars

   1.1The Tribunal, based on the decision by DIBP, failed to consider the Applicant has and meet the requirement of visa grant clause 500.212 of genuine intends to stay temporary in Australia.

   1.2The Tribunal failed to consider that applicant has met all other relevant requirement to grant of student visa subclass 500.

   1.3Tribunal failed to take into the consideration

   1.3.1 The nature of the ties;

   1.3.2 Significance of the ties;

   1.3.3 Whether application was genuine in nature;

   1.3.4 Role of the Department;

   1.3.5 At the time of the refusal if the Applicant could demonstrate exceptional circumstances;

   1.3.6 Other circumstances such as close family and economic ties of applicant;

   (errors in original)

2. The application is supported by a short affidavit, which I received subject to the proviso that [3] of it I treated as a submission.  I also have before me as evidence the court book filed on 3 May 2018.  Both Ms Reena and the Minister filed pre-hearing written submissions. 

3. I invited oral submissions from Ms Reena and the Minister’s solicitor today.  Ms Reena presents as a genuine and diligent student.  She is concerned about her failure to secure a further student visa following her successful studies to date. 

4. The decision of the delegate was on a different factual basis to that of the Tribunal.  Ms Reena accepts that she was led into a poor course choice for the purposes of the last visa application, which she sought to remedy before the Tribunal.  She has an earnest desire to complete the MBA studies which she commenced prior to the Tribunal decision.

5. The decision which the Tribunal was called upon to make required, in my view, a subjective assessment by the Tribunal of Ms Reena’s intentions. Ms Reena’s submissions to the Court essentially presented the argument that the objective indicators should have led to a different outcome. That goes to the merits of the Tribunal decision. Those merits are beyond the scope of this proceeding. It is entirely possible that a different Tribunal member may have reached a different conclusion based on the same material. That, however, is not the point. The point is that the Tribunal’s conclusions were open to it on the material before it. The Tribunal’s procedure was correctly followed in accordance with the Migration Act.

6. I otherwise agree with the Minister’s submissions concerning the grounds of review advanced. 

Ground 1

1. In ground 1 Ms Reena makes three separate complaints.  Ms Reena contends that the Tribunal:

   a)misconstrued the delegate’s decision;

   b)failed to consider she had “complied substantially” with all student visa conditions and thereby denied her procedural fairness; and

   c)failed to consider that she intended to genuinely stay in Australia temporarily.

2. First, there is no basis for Ms Reena’s claim that the Tribunal misconstrued the delegate’s decision. The Tribunal plainly appreciated that the visa application had been refused because the delegate found she did not satisfy clause 500.212.[32]

   [32] CB 200, [4]

3. Secondly, although Ms Reena’s immigration history was a relevant consideration for the Tribunal under Direction No. 69, item 14,[33] it was only required to consider Ms Reena’s compliance with the conditions of her student visa in the context of “previous travels to Australia”.[34]  As Ms Reena had remained in Australia on a student visa since first arriving in 2008, this was not a case in which the Tribunal was required to consider or have regard to Ms Reena’s compliance with the conditions of her previous student visa.  In any event, the Tribunal had regard to Ms Reena’s immigration history, specifically her successful completion of past courses and the length of time she had lived in Australia.[35]  Accordingly, despite Ms Reena’s contention, no denial of procedural fairness arises.

   [33] See CB 115

   [34] Direction No. 69, item 14(b)(i)

   [35] CB 200-204, [14], [20], and [22]

4. Thirdly, the Tribunal plainly considered whether Ms Reena intended to genuinely stay in Australia temporarily as this was the fundamental issue the Tribunal identified as arising in relation to the decision under review.[36]  Insofar as Ms Reena contends that the Tribunal ought to have come to a different conclusion on the material before it, this is an attempt to seek impermissible merits review.[37]

   [36] CB 201, [10]

   [37] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272

5. No jurisdictional error is revealed on the part of the Tribunal in relation to any of the complaints made by Ms Reena under ground 1 and it must fail.

Ground 2

1. Ground 2 also contains three separate complaints.  First, Ms Reena asserts that the Tribunal took into account irrelevant considerations and “constructively failed to consider the requirement of visa grant was met hence misconstrued the criteria or applied wrong test regarding the grant of the visa application” (sic).  The accompanying particulars make two further allegations that the Tribunal:

   a)failed to consider that Ms Reena met clause 500.212 and “all other criteria” for the grant of a student visa; and

   b)failed to take “into the consideration” (sic):  the nature of “the ties”; the significance of “the ties”;  whether Ms Reena was “genuine in nature”, the “role of the Department”; whether Ms Reena could “demonstrate exceptional circumstances”, and other circumstances such as “close family and economic ties” of Ms Reena.

2. First, in relation to the broad assertion of error made under ground 2, Ms Reena has not identified the irrelevant considerations the Tribunal allegedly took into consideration.  This complaint cannot be made out.

3. Secondly, the Tribunal assessed Ms Reena against clause 500.212 in determining whether Ms Reena satisfied the primary criteria for the grant of the student visa. Again, Ms Reena has not identified, nor is it apparent, how the Tribunal is alleged to have misconstrued the relevant criteria or applied the wrong test. Ms Reena’s complaint that the Tribunal failed to consider whether she satisfied the criteria for the grant of a student visa fails to grapple with the Tribunal’s decision, in which it found that she did not meet the criteria for that visa, and cannot succeed.

4. Thirdly, Ms Reena’s contention that the Tribunal failed to consider the nature and significance of “the ties” or other circumstances such as “close family and economic ties” fails on the facts.  The Tribunal[38] plainly considered Ms Reena’s family ties to India, but found they were not a significant incentive for Ms Reena to return to India.  Additionally, the Tribunal[39] had regard to Ms Reena’s evidence about her “economic ties” to India namely, her father’s business and her stated career goal that she had a desire to return to India to manage that business.  Accordingly, taken at their highest, these complaints also seek impermissible merits review.[40]

   [38] At CB 203-204, [21]

   [39] At CB 203, [17]

   [40] Ibid.

5. Ms Reena’s additional complaint that the Tribunal failed to consider the “role of the Department” does not reveal any error on the part of the Tribunal.  Finally, the Tribunal was not required to consider any “exceptional circumstances” under the relevant criteria and this complaint misunderstands the basis of the Tribunal’s decision.

Ms Reena’s written submissions

1. Ms Reena’s written submissions (AS) filed on 13 July 2018 contain nine paragraphs which make a number of allegations that have not been raised in the application for judicial review.  Namely, Ms Reena:

   a)contends that the Tribunal made a “hasty decision” on the basis of “miscommunication and miss-interpretation that happened during the hearing of my appeal” (sic).[41]  Further, Ms Reena alleges that “misinterpretation of my statements during the hearing of my appeal with MRT is clearly visible” because “they mentioned” that she had said she had two sisters living in Canada[42] but claims this is not true because she has one sister and one brother and her sister “is not a student but she is a permanent Resident of Canada”;[43]

   b)seeks to clarify that the “first place visa officer was mistaken about the course of study I intend to pursue” because her “Post Graduate Diploma is considered as partial Master Degree”;[44] and

   c)makes a number of allegations about the competence and negligence of the migration agent who assisted her before the Minister’s Department and Tribunal, including that they did not attach her “COE”.[45]

   [41] AS, [2]

   [42] See CB 204, [21]

   [43] AS, [7]

   [44] AS, [3]

   [45] AS, [4]-[6]

2. In relation to Ms Reena’s complaints about the “miscommunication and miss-interpretation” of her evidence before the Tribunal, Ms Reena has not filed any evidence, such as a transcript of the Tribunal hearing, to support her contention that there were issues with the interpretation of her evidence at the hearing.  Nor does the Tribunal’s decision record reveal that at any point during the hearing Ms Reena made a complaint about the standard of interpretation.  Further, although Ms Reena now seeks to clarify her evidence about whether she had one or two sisters living or studying in Canada, in the absence of any evidence to support Ms Reena’s contention that this evidence was misunderstood, the Tribunal’s decision record should be accepted as an accurate record of Ms Reena’s evidence at the Tribunal hearing.  Accordingly, Ms Reena’s complaints cannot succeed.

3. To the extent that Ms Reena refers to the Minister (the “first place visa officer”) in her written submissions, pursuant to s.476(2) of the Migration Act, the Court has no jurisdiction to review the delegate’s decision as it is a primary decision.

4. In relation to Ms Reena’s complaints about her migration agent, it is well established that negligence or inadvertence on the part of the migration agent does not establish jurisdictional error.[46]  The allegations made by Ms Reena, if intended to do so, fall well short of establishing any fraud, let alone fraud “on the Tribunal”.[47]  In any event, insofar as Ms Reena alleges that the agent did not attach her “COE”, this document was provided to the Tribunal on 7 December 2017.[48]

   [46] Minister for Immigration v SZLIX (2008) 245 ALR 501 at [33]

   [47] Ibid.; SZHVM v Minister for Immigration (2008) 170 FCR 211 at [47]-[48]

   [48] CB 152

5. The remaining complaints made by Ms Reena in her written submissions[49] simply restate her evidence provided to the Tribunal as to why she believes she meets the Genuine Temporary entrant criteria.  To the extent that Ms Reena alleges the Tribunal should have come to a different conclusion on the basis of its assessment of her evidence, such complaints seek to cavil with the Tribunal’s factual findings and invites the Court to engage in impermissible merits review.[50]

   [49] At AS, [8]-[9]

   [50] Wu Shan Liang at 272

Ms Reena’s affidavit

1. Ms Reena’s supporting affidavit filed on 16 March 2018 simply annexes a copy of the relevant Tribunal and delegate’s decisions and fails to advance her case in any meaningful sense.  Insofar as Ms Reena seeks review of the delegate’s decision dated 25 October 2016, the Court is prevented from reviewing that decision.[51]

   [51] Section 476(2) of the Migration Act

Conclusion

1. I conclude that Ms Reena is unable to advance an arguable case of jurisdictional error by the Tribunal. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Ms Reena did not wish to be heard on costs. 

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, in accordance with the Court scale and the Federal Circuit Court Rules, in the sum of $3,667.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     30 July 2018