SAHARAN v Minister for Immigration

[2016] FCCA 2231

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAHARAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2231

Catchwords:
MIGRATION – Application for judicial review – student visa – whether Tribunal failed to take into account evidence provided by the Applicant regarding Confirmation of Enrolments – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.499

Migration Regulations 1994 (Cth), cl.572.223, sch.2

Cases cited:

Ghimire v Minister for Immigration and Border Protection [2014] FCA 899

MZYQU v the Minister for Immigration and Citizenship [2012] FCA 1032
QAAA of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918

Applicant: AMIT SAHARAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1809 of 2015

Judgment of: Judge Jones

Hearing date: 25 July 2016

Date of Last Submission: 25 July 2016

Delivered at: Melbourne

Delivered on: 25 July 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Ms Kowalewska

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application for judicial review filed by the Applicant on 5 August 2015 be dismissed.

2. That the Applicant pay the First Respondent’s costs in the fixed amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1809 of 2015

AMIT SAHARAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction

1. In this matter the Applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 7 July 2015 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) who refused to grant the Applicant a Student (Temporary) (Class TU) subclass 572 visa (“the visa”).

2. The Applicant is a citizen of India who arrived in Australia on a Student visa in August 2009.  He has been granted three further Student visas. On 24 December 2014, the Applicant applied for the visa (CB 129).

3. The delegate refused to grant the Applicant the visa for the reason that the delegate formed the view that the Applicant did not satisfy the criteria required in cl.572.223 in sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The Applicant sought a review of this decision by the Tribunal. The Tribunal affirmed the delegate’s decision (CB 196-203).

Clause 572.223 Criteria

1. The Applicant was required to meet cl.572.223(1)(a) of sch.2 to the Regulations, which required that, at the time of the decision:

   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;

   (ii)the applicant’s immigration history;

   ...

   (iv)any other relevant matter…

2. This criterion is one that must be satisfied by all Applicants who make an application for a Student (Class TU) Temporary visa on or after 5 November 2011. The Applicant, having applied for the visa on 24 December 2014, was required to meet that criterion.

3. Under s.499 of the Migration Act 1958 (Cth) (“the Act”), that clause was to be applied consistently with Direction No.53, titled ‘Assessing the genuine temporary entrant criterion for student visa applications’ (“the Direction”).

4. The terms of the Direction required the Tribunal to take into account, where relevant, certain matters, including the Applicant’s circumstances in their home country and in Australia, the Applicant’s potential circumstances in Australia, the value of the course to the Applicant’s future, and the Applicant’s immigration history. The Direction is not to be used as a checklist, but rather as a guide for decision-makers in weighing up the Applicant’s circumstances as a whole, in reaching a finding as to whether an Applicant satisfies the genuine temporary entrant criteria: Ghimire v Minister for Immigration and Border Protection [2014] FCA 899 per Gilmour J at [3].

5. The weight to be given by the Tribunal to the various factors was a matter for the Tribunal.

The Tribunal decision

1. The Tribunal found that the relevant subclass of student visa was Subclass 572, having regard to the type of course in which the Applicant was enrolled in as his principal course (CB 199 at [9]). The Tribunal identified that the issue it had to decide, was whether the Applicant satisfied the genuine temporary entrant criterion, to which I have already referred (CB 199 at [10]).

2. It is apparent from the Tribunal’s decision that it discussed with the Applicant his written submissions, and relevant matters, having regard to the Direction (CB 200-202 at [14]-[17]). The Tribunal noted that the Applicant provided to the Tribunal his educational documents, including his completion certificates (CB 200 at [13]).

3. The Completion Certificates were for the following courses:  

   ·    Certificate III in Business in Cambridge College;

   ·    Diploma of Management at Cambridge College;

   ·    Certificate IV in Business from Education Access Australia;

   ·    Diploma of Business from Education Access Australia; and

   ·    Certificate III in Engineering - Fabrication Trade from the Sheila Baxter College.

4. The Tribunal also noted that, in addition to these courses, the Applicant had stated in his written submission that he had completed a Certificate IV in Advanced Diploma of Management at Avita College between 6 January 2014 and 4 January 2015. 

5. The Tribunal referred to the Applicant’s written submission disputing the delegate’s finding that he had 27 Confirmation of Enrolments while in Australia. The Applicant noted in his written submissions, that a number of his past enrolments were linked, and that enrolment in one course required an enrolment in another course. Further, he noted that there had been course code changes, which also explained the number of his enrolments. The Tribunal noted that the PRISMS record did contain a series of repeated enrolment details which made it appear that the Applicant had enrolled in a large number of classes. The Tribunal noted, however, that the Applicant agreed that there were certainly a number of enrolments (CB 201 at [14]).

6. The Tribunal recorded that the Applicant’s explanation for a number of cancelled enrolments was that the hot weather in Australia had caused him health problems. However, the Tribunal observed that the Applicant’s region of India was renowned for its hot weather, and found it difficult to accept that the hot weather in Australia had caused him too much difficulty (CB 201 at [14]).

7. The Tribunal then considered another relevant factor, which was the Applicant’s future plans. The Tribunal set out the Applicant’s evidence; that being, that the Applicant’s father worked in a steel fabrication business in Qatar and planned to open his own business upon his return to India from Qatar. It was the Applicant’s intention to assist his father in establishing that business (CB 201 at [15]).

8. The Tribunal also recorded the Applicant’s evidence that he planned to assist his mother to develop her dairy farm, which presently had a limited number of buffalos and cows. The Tribunal noted that the Applicant stated that the qualifications he had already obtained in Australia, and his proposed Advanced Diploma of Marketing, would assist him in knowing how to run his own business. 

9. The Tribunal did say that the Applicant had contradicted himself, considering his stated plans to assist in his parents’ business, when he also said that the job market in India was very competitive, so he tried to build his skills by completing various courses. 

10. The Tribunal also considered the Applicant’s study history (CB 202 at [16]). The Tribunal accepted that the PRISM record did not truly represent the Applicant’s enrolment numbers, but noted that the Applicant has enrolled in, and studied, a number of similar courses over his extended period in Australia. The Tribunal said, in particular, that the Applicant had studied a number of business-related courses, including Frontline Management, business and management courses, and that the Applicant now seeks to enrol in a marketing course, requiring an extra year of study.

11. The Tribunal noted that while the Applicant enrolled in a number of business-related courses, he had not completed all the courses he enrolled in. The Tribunal did not accept that the Advanced Diploma of Marketing, which the Applicant was enrolled in, would assist him to develop his mother’s dairy business, as it was a small business not requiring such a qualification; nor assist the Applicant in developing any business in steel fabrication with his father, as the business had not yet been established and because the Applicant already held a series of similar qualifications he could rely upon to assist in establishing a business of this nature (CB 202 at [16]). 

12. The Tribunal said that it did not accept that the Applicant requires a year of further study in the marketing area to assist in the establishment of the businesses. The Tribunal found that the Applicant was stating this for the purpose of gaining the visa. The Tribunal also did not accept that the further qualification would alter the Applicant’s employment opportunities in India, other than those with his family (CB 202 at [16]). 

13. The Tribunal concluded that the Applicant’s enrolment in the marketing course was being sought to extend his time in Australia, using the student visa program for residency rights and not for the purpose of studying or any future employment opportunities. The Tribunal said that it placed significant weight on this issue (CB 202 at [16]). 

14. In summary, the Tribunal found that, having regard to the Applicant’s immigration history, the value of the proposed course to his future business or employment plans, his contradictory evidence for undertaking a marketing course, his previous enrolments in a number of similar courses over his extended period of stay in Australia, the qualifications already obtained in Australia and the Applicant’s ties with Australia and with India, the Applicant’s purpose in applying for the visa was to ensure his ongoing residence in Australia (CB 202 at [17]-[18]). For these reasons, the Tribunal found that it was not satisfied that the Applicant intended genuinely to stay in Australia temporarily and, therefore, did not satisfy the criterion in cl.572.223(1)(a) of sch.2 to the Regulations (CB 202 at [18]).

Judicial review

1. The Applicant appeared before the Court by himself, with the assistance of an interpreter in the Punjabi and English languages. As the Applicant was self-represented, I explained to him the procedure involved in the hearing and the nature of a judicial review hearing. 

2. I explained that the function of the Court was to examine the Tribunal’s decision and decide whether the Tribunal had made a serious legal mistake, on the basis of his grounds of application. I emphasised that the Court’s function was not to decide whether he should be granted the visa, or in other words, to consider the merits of his application. 

3. The Applicant specified one ground of review in his application filed on 5 August 2015.  His ground is as follows:

   The AAT erred in not giving consideration to the evidence that the applicant being myself has only less than 10 COE (Confirmation of Enrolment) from study providers.  I completed all study relating to all of my enrolments.  The AAT disregarded that evidence presented by me.  Accordingly AAT failed to give consideration to the evidence as a matter of law. Therefore the AAT erred as a matter of law.

4. I asked the Applicant to explain what he meant by this ground, and he referred to an extract from his written submission (CB 200), which relates to his dispute of the delegate’s finding that he had 27 Confirmation of Enrolments. The Applicant, in his written submissions, stated that he received information regarding his Confirmation of Enrolments, in relation to six of the Confirmation of Enrolments. He claims that the Tribunal did not consider this evidence.

5. It seems that the Applicant may have confused the Tribunal’s decision with the delegate’s findings in that, when I asked him where the Tribunal failed to consider his evidence that he had less than 10 Confirmation of Enrolments from study providers, he referred to the decision of the delegate. 

6. It is true that the Tribunal did not specifically state that the information in the Applicant’s Freedom of Information referred to six Confirmation of Enrolments. However, it is clear that the Tribunal dealt with the Applicant’s complaint that the PRISMS record contained a series of repeated enrolments, which explained the large number of enrolments, as well as course code changes and enrolments being linked (CB 201 at [14]).

7. The Tribunal said the Applicant agreed that there were certainly a number of enrolments. It is reasonable to infer that the Tribunal was referring to the extract of the Applicant’s written submission in relation six of the Confirmation of Enrolments. I have already noted that the Tribunal considered his explanation for the large number of enrolments, and was not convinced.  

8. It is also to be noted that, in his own written submissions to the Tribunal, the Applicant stated that he had been enrolled in Certificate IV in Fabrication and Engineering three times. He also said he had been enrolled in Certificate IV in Spoken and Written English and Certificate III in Automotive Mechanical Technology. Because of the visa refusal, he never got a chance to study these courses (CB 201 at [13]).

9. I am satisfied that the Tribunal did appropriately consider the Applicant’s evidence. It took into account all of the matters raised by the Applicant relating to the genuine temporary entrant criterion. The weight that the Tribunal attributes to a particular piece of evidence is a matter for the Tribunal: QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918 at [22].

10. I am satisfied that the Tribunal appropriately considered the evidence, applied the criteria in the Regulations, and had regard to the relevant parts of the Direction. The Tribunal summarised the factors to be considered, and assessed the Applicant’s circumstances by reference to the requirements contained in the Direction which were relevant to its decision. Therefore, it complied with its mandatory obligation under sub-s.499(2)(a) of the Act, and there is nothing to indicate that the Tribunal did not give actual or intellectual consideration to the review application: MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032 at [80].

Conclusion

1. Having regard to all of this, I am satisfied that the Tribunal did not fall into jurisdictional error. Consequently, I would make orders dismissing the application for judicial review, with costs. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date: 24 August 2016