Rehill v Minister for Immigration

[2016] FCCA 2342

FEDERAL CIRCUIT COURT OF AUSTRALIA

REHILL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2342

Catchwords:
MIGRATION – Visa – student visa – whether Tribunal erred in finding applicant was not genuine applicant for entry and stay as a student – weight – no error demonstrated.

Legislation:

Migration Act 1958 (Cth), ss.65 & 368D

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

Cases cited:

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: KULVIR SINGH REHILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 331 of 2015

Judgment of: Judge Heffernan

Hearing date: 7 April 2016

Date of Last Submission: 7 April 2016

Delivered at: Adelaide

Delivered on: 21 September 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms Helsdon

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application dated 9 September 2015 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 331 of 2015

KULVIR SINGH REHILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review in relation to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 18 August 2015 which affirmed an earlier decision of a delegate of the Minister to refuse the applicant a Student (Temporary) (Class TU) Subclass 572 visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant appeared before me unrepresented and made brief oral submissions.  The application dated 9 September 2015 raises one ground as follows:

   “In oral decision, Member claimed that I have already studied enough and it seems to him that course which I am studying is not good enough and I am doing it to maintain my temporary residence in Australia.  Member asked me question like, Certificate 4 and diploma of Business administration are available in India then why are you studying in Australia.  Member came to conclusion for decision by asking wrong questions and putting less weight on the facts and proof presented to him.  All the courses which are taught in Australia are available in Indian so no student should to Australia? (sic)  What did member want to imply.  I have my career goals and I am studying according to that So now Member has authority to decide what is good for my future and which courses are enough?  I believe member did not act as per migration law and came to conclusion based on wrong questions asked by him.  He also did not consider that I have successfully completed all the courses I was earlier registered in and I am doing well in the course in which I was enrolled.  Letter from College and other proof were already given to Tribunal but member did not put any weight on these proofs.”

3. On 9 October 2015, the Registrar gave the applicant leave to file any amended application by 19 February 2016.  The applicant was also given leave to file and serve such further material, including a transcript of the proceedings before the Tribunal, that he may choose to rely on at the hearing.  He was ordered to file and serve any outline of submissions 14 days prior to the hearing.

4. The applicant has not filed any further material, has not made an amended application, and did not file an outline of submissions.

5. The applicant relies on his affidavit dated 9 September 2015 which repeats his ground of application and annexes a copy of the written reasons of the Tribunal.  It adds nothing further in relation to the merits of his application.

6. In its written outline of submissions, the first respondent has provided a helpful summary of the background and procedural history of this matter.  I do not understand that summary to be the subject of any dispute by the applicant, and accordingly I paraphrase it below.

7. The applicant is an Indian citizen who arrived in Australia on 27 March 2009 on a temporary student visa.[1]  Since arriving in Australia, he has held two further student visas.  His most recent visa expired on 20 September 2014.[2]

   [1]     Court Book (‘CB’) p 74.

   [2]     CB p 74.

8. Whilst in Australia the applicant has studied for and completed a number of different courses.  The courses he has completed are as follows:[3]

   a)General English:  27 April 2009 – 29 May 2009;

   b)Certificate III in Hospitality (Asian Cookery):  15 April 2010 – 24 June 2010;

   c)Diploma of Hospitality:  1 July 2010 – 30 December 2010;

   d)Certificate IV in Business:  11 April 2011 – 7 October 2011;

   e)Diploma of Management:  24 October 2011 – 20 April 2012;

   f)Certificate III in Horticulture:  4 June 2012 – 6 June 2013; and

   g)Advanced Diploma of Management:  22 July 2013 – 20 July 2014.

   [3]     CB p 63.

9. The applicant lodged the subject application for a student visa on 2 September 2014.  He applied to stay for another two years in this country in order to complete a Certificate IV in Business Administration and a Diploma in Business Administration.  In explaining his reasons for seeking to undertake further study, the applicant indicated that it would be beneficial for him to learn about all aspects of how a business operates, particularly with respect to planning and organising administrative systems.  He claimed that the degree of industry focus in Australia would provide him with “valuable hands on practical skills of the business environment”.  He claimed that this distinguished it from the more theoretical approach taken in India.[4]  For this reason, the further studies will improve his prospects for employment when he returned to India, or indeed to set up his own business.[5]  The applicant has worked in Australia since arriving here, and since July 2012 has apparently been employed as a part-time manager at a newsagency.

   [4]     CB p 26.

   [5]     CB p 27.

10. The application for the visa was refused on 3 October 2014. A delegate of the Minister concluded that the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). In particular, the delegate concluded that the applicant did not satisfy the genuine temporary entry criterion. The delegate reasoned that the previous studies undertaken by the applicant since arriving in Australia had substantially provided him with the skills and knowledge he claimed to seek by undertaking the further proposed studies. The delegate placed weight on the fact that the applicant had already held student visas for over five years, during which time he was employed, and the delegate was concerned that the further two years sought were simply an alternate means of maintaining an ongoing residence in Australia.[6]

    [6]     CB p 64.

11. The applicant made his application to the Migration Review Tribunal (as it then was) on 21 October 2014.  The Tribunal wrote to him via his migration agent on 24 July 2015 and invited him to appear at a hearing to give evidence and present argument in support of his application.  The applicant was at that time provided with a copy of Ministerial Direction No. 53 (‘MD 53’).

12. The Tribunal hearing occurred on 18 August 2015.  The applicant appeared at that hearing with the assistance of his migration agent.

Tribunal reasons and decision

1. At the conclusion of the hearing, the Tribunal proceeded to give an immediate oral decision affirming the delegate’s decision.  It later sent him a letter which confirmed that outcome.  On 14 October 2015, the reasons of the Tribunal were reduced to writing.[7]  The Tribunal noted that it had confirmed with the applicant that he understood the primary decision of the delegate.  It noted that the delegate had assessed his application against the factors set out in MD 53, which were to be treated as guidelines for assessing whether or not the applicant met the genuine temporary entrant criterion.[8]

   [7]     CB pp 112 – 114.

   [8]     CB p 113.

2. Having noted those matters that were taken into account by the delegate, and the concerns expressed in the primary decision that the student program was being used to maintain ongoing residence in Australia, the Tribunal then proceeded to summarise the relevant background and claims of the applicant.[9]  The Tribunal found that the courses undertaken by the applicant were unrelated, repetitive, and of questionable value to his future.[10]  It noted that his purpose for his proposed study was to be an administration manager within a business.  It noted that the applicant expressed his intention to go back to India and open a restaurant.[11]  The Tribunal concluded that the applicant’s statements lacked clarity, that his studies were not focused on a clear career plan but were in fact an ad hoc device designed simply to maintain ongoing residence in Australia.[12]  The Tribunal had doubts as to the evidence given by the applicant about how much he was earning in his employment as a manager at the South Plympton Newsagency.  That caused it to have some doubts as to the exact nature of the work that he was doing.

   [9]     CB p 113.

   [10] CB p 113 at [13].

   [11] CB p 114 at [14].

   [12] CB p 114 at [15].

3. The Tribunal summarised its conclusions as follows:

   “Having considered all the evidence including your study history, the value of your proposed courses to your future, your circumstances, immigration history, and other relevant matters, the Tribunal is not satisfied you are a genuine applicant for temporary entry and stay as a student in Australia and it is therefore the decision of this Tribunal to affirm the decision under review.[13]

   [13] CB p 114 at [18].

4. For that reason, the Tribunal affirmed the decision of the delegate.

Submissions

1. In his oral submissions, the applicant responded to the concern expressed by the Tribunal about the hourly rate he was apparently being paid.  He indicated that he had been working nightshift and that it was mistaken of the Tribunal member to focus on this aspect.  He submitted that it was not appropriate for the Tribunal to ask him why he was not studying in India.  He submitted that the Tribunal was in error when it concluded that he was staying in Australia for the purpose of making money.  For that reason, he said that the wrong questions asked by the Tribunal were: how much he was earning, and why he was not studying in India.

2. The applicant submitted that the Tribunal did not take into account his good academic record.  In his submission, the Tribunal should at least have acknowledged that and taken it into account.  It was for that reason that he said the Tribunal failed to put any weight on the evidence relating to him having completed his courses.

3. I will summarise both the oral and the written submissions of the first respondent. With respect to the submission made by the applicant about the wrong questions having been asked, the first respondent submitted that the Tribunal was required by virtue of reg.572.223(1)(a) to be satisfied that the applicant was genuinely intending to stay in Australia temporarily having regard to the factors identified in the Regulations. For that reason, it submitted that the nature of the studies undertaken by the applicant was one of a number of things the Tribunal focused on. It submitted that it was not inappropriate for it to do so. With respect to the Tribunal focusing on the fact that the applicant had apparently been earning $40 per hour, the first respondent submitted that it was within the discretion of the Tribunal to take this into account under MD 53. The first respondent submitted that there was an obvious relevance to the circumstances and remuneration of the applicant in any employment in this country when considering his ties to Australia and whether he had any motive to return to India.

4. As far as the academic record of the applicant was concerned, it submitted the Tribunal did consider this at paragraphs 9 and 10 of the Decision Record.  It submitted that the Tribunal concluded that the courses studied over time seemed quite different and that it was open to the Tribunal to conclude that a proposal to undertake further business courses was repetitive and unconvincing.  The first respondent submitted that the Tribunal had regard to all of the circumstances it was required to under MD 53.  The applicant was, Ms Helsdon submitted, on notice that MD 53 was relevant because that very issue had been raised by the delegate.  He had been provided with a copy of MD 53 at the time he was extended an invitation to attend at the hearing.[14] The first respondent submitted that the Tribunal was entitled to give an oral decision pursuant to s.368 which allows for ex tempore decisions. In that regard, the Decision Record is an oral statement of the reasons for decision. The brevity in the Decision Record did not mean that the Tribunal had not taken into account all relevant matters. Ms Helsdon submitted that the Tribunal had complied with the requirements of s.368D.

   [14]    CB pp 86 - 93.

Consideration

1. I am not satisfied that the applicant has demonstrated that the Tribunal fell into jurisdictional error in making the decision it did. 

2. The Tribunal was required to assess this matter against cl.572.223(1)(a) of Schedule 2 to the Regulations. Those criteria had to be satisfied at the time of decision. Clause 572.223(1)(a) states as follows:

   “(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

   (iii)   if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)    any other relevant matter”

3. In considering whether the criteria was satisfied at the time of the decision, it was necessary for the Tribunal to have regard to MD 53.  That direction sets out a number of factors which the Tribunal was required to have regard to.

4. The Tribunal correctly identified that the applicant was to be assessed as against subclass 572. Nowhere in its decision did it make reference to cl.572.223(1)(a). This does not mean that it did not have regard to the relevant criteria stated in that clause. It is apparent from the written statement of the oral decision, that the Tribunal had regard to the applicant’s circumstances and his immigration history. As I have noted, the Tribunal specifically referred to MD 53 at the outset of its reasons. That direction provides a list of matters that must be considered by the Tribunal when assessing the genuine temporary entrant criterion. Whilst the Tribunal did not summarise those matters listed in MD 53, the Tribunal clearly did take into account the applicant’s circumstances, including the circumstances in his home country, his potential circumstances in Australia, including his ties to Australia, and whether the program was being used to circumvent the intentions of the migration program, or being used to maintain ongoing residence, the value of the course to the applicant’s future, and his immigration history. I am satisfied that the Tribunal did have regard to the matters it was required to have regard to under MD 53.

5. Further, a consideration of paragraph 9(a) of MD 53 provides the answer to the applicant’s contention that the Tribunal asked the wrong question when it asked him why he was not undertaking his studies in India.  Paragraph 9(a) says as follows:

   “9.In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:

   (a)Whether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there.”

6. The ministerial direction also provides an answer to the applicant’s complaint that the Tribunal’s questioning of him as to the amount of money he was earning per hour, and the nature of his employment duties, were wrong questions.  Paragraph 11(a)-(c) of MD 53 provides as follows:

   “11.In considering the applicant’s potential circumstances in Australia, decision makers must have regard to the following factors:

   (a)the applicant’s ties with Australia which would present as a strong incentive to remain in Australia.  This may include family and community ties.

   (b)evidence that the student visa program is being used to circumvent the intentions of the migration program.

   (c)whether the student visa is being used to maintain ongoing residence.”

7. A proper consideration of those factors could only be made in these circumstances if the Tribunal asked the questions that it did about the circumstances of the applicant’s employment.

8. I am not satisfied that the Tribunal asked itself the wrong question, either when asking about why he chose to study in Australia rather than India, or when it questioned him about the circumstances of his employment.

9. I am not satisfied that the Tribunal committed jurisdictional error by failing to give appropriate weight to the fact that the applicant had successfully completed his earlier studies.  The Tribunal did not doubt that the applicant had successfully completed courses in the past.  It concluded that those courses were disparate in nature, repetitive and that the pattern of studies supported an inference that his application for the visa was made for the ulterior purpose of prolonging his stay in Australia.  Having made that finding, it then found that he did not satisfy cl.572.223(1) because it was not satisfied that he was a genuine applicant for entry and stay in Australia as a student because he did not intend genuinely to stay in Australia temporarily.  This finding was at least open to the Tribunal.  It was a matter for the Tribunal what evidence it regarded as relevant.  Unless for some reason a failure to accord appropriate weight to a relevant piece of evidence caused its decision to be unreasonable in the relevant legal sense, then the weight to be accorded to the evidence was entirely a matter for the Tribunal.  I am not satisfied that the Tribunal decision was unreasonable in failing to accord greater weight to the fact that the applicant had successfully completed his previous studies.  It is clear from the reasons of the Tribunal, that it found the lack of focus and cohesion between the applicant’s previous studies, and his proposed future studies and plans, to be of greater significance than the fact that he had successfully completed earlier studies.  It was open to the Tribunal to so find.

10. This was an oral decision of the Tribunal. I turn now to consider s.368D of the Act which deals with oral decisions.

11. Section 368D(2) of the Act lists the requirements for a decision on a review which is given orally. It states as follows:

    “Statement in relation to oral decision

    (2)If a decision on a review is given orally, the Tribunal must:

    (a)make an oral statement that:

    (i)     describes the decision of the Tribunal on the review; and

    (ii)     describes the reasons for the decision; and

    (iii)   describes the findings on any material questions of fact; and

    (iv)    refers to the evidence or any other material on which the findings of fact were based; and

    (v)     identifies the day and time the decision is given orally; or

    (b)make a written statement that:

    (i)     sets out the decision of the Tribunal on the review; and

    (ii)     sets out the reasons for the decision; and

    (iii)   sets out the findings on any material questions of fact; and

    (iv)    refers to the evidence or any other material on which the findings of fact were based; and

    (v)     records the day and time the decision is given orally.”

1. The applicant has made no submission which suggests that the Tribunal failed to comply with the requirements of subparagraph (a) at the time of making the oral statement.  On 19 August 2015, the Tribunal wrote to the applicant providing him with a written record of the outcome of the review and a “fact sheet” and information about decisions of the Tribunal.[15]  That letter confirmed that the Tribunal had made an oral decision and also that it had explained the reasons for the decision at the hearing.  A written statement was requested by the Minister and this was prepared by the Tribunal on 14 October 2015.  That written statement confirms that on 18 August 2015, the Tribunal made an oral decision and gave an oral statement of decisions and reasons to the applicant on that day.  It confirms that the statement is a written record of those reasons.[16] In my view, the written statement complies with s.368D(2)(b). Whilst the reasons were clearly brief, they were compliant with the section.

   [15]    CB p 109.

   [16] CB p 113 at [2].

2. The submissions made by the applicant demonstrated in reality what he sought from this Court was an impermissible review of the merits of the Tribunal decision.  He is clearly unhappy with the decision.  The observations of the Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[17] are appropriate to this matter:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal.  In many cases, those exceptions were purely on the basis that the appellants disagree with the findings.  In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal.  To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act.  As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed.  Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

   [17] [2004] FCAFC 10 at [10].

3. I dismiss the application.  Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 21 September 2016