Shah v Minister for Immigration

[2015] FCCA 271

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 271

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of a show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Rules 2001 (Cth)

Migration Act 1958 (Cth), s.360

First Applicant: ANKITBHAI JAGDISHBHAI SHAH

Second Applicant: NILAMBEN ANKITBHAI SHAH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1180 of 2014

Judgment of: Judge Driver

Hearing date: 10 February 2015

Delivered at: Sydney

Delivered on: 10 February 2015

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms C Hillary of DLA Piper

INTERLOCUTORY ORDERS

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

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1180 of 2014

ANKITBHAI JAGDISHBHAI SHAH

First Applicant

NILAMBEN ANKITBHAI SHAH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 4 April 2014.  The Tribunal affirmed decisions of the delegate not to grant the applicants temporary student visas.  There are two applicants who are husband and wife.  The first applicant, the applicant husband, Mr Shah, was the principal applicant.  References in this judgment to the applicant are intended to be references to him.

2. Mr Shah arrived in Australia on 6 December 2007 as the holder of a student visa.  That visa was due to cease on 31 March 2011.  He departed Australia on 24 May 2010 and returned on 24 June 2010.  He departed Australia again on 22 October 2011 and returned on 7 December 2011.  On 23 March 2012, Mr Shah was granted a temporary graduate visa.  That visa was due to cease on 23 September 2013.  On 20 January 2013, Mr Shah departed Australia and returned on 14 March 2013.  He has also held a series of bridging visas. 

3. The second applicant (Mrs Shah) arrived in Australia on 7 June 2013 on a temporary graduate visa and had remained in Australia since then.  The applicants applied for the presently relevant visas on 20 September 2013.  That application was refused by the Minister’s delegate on 7 November 2013. 

4. It appears, notwithstanding what the Tribunal says at [6] of its reasons, that the delegate was concerned about Mr Shah’s financial capacity.  It also appears that on the day before the applicants attended a hearing before the Tribunal, the applicants, through their agent, submitted a substantial body of material.  It appears that that material was not available to the Tribunal at the hearing, but that the Tribunal subsequently considered it.  That material satisfied the Tribunal that Mr Shah met several criteria for the grant of the visa, including the financial criteria.  Mr Shah was also able to persuade the Tribunal that he met the English language proficiency requirement, having passed an IELTS test.

5. The Tribunal decision turned on the question of whether Mr Shah is a genuine student.  The Tribunal records at [16] of its reasons[1] that that issue was discussed with him at the hearing.  The Tribunal with particular regard to the reasons set out at [37] and [38] of its reasons[2], concluded that Mr Shah was studying in order to remain in Australia rather than being in Australia to study.  The Tribunal concluded that he is not a genuine temporary entrant for the purposes of study. 

   [1] Court Book (CB), page 256

   [2] CB 259-260

6. These proceedings began with a show cause application filed on 1 May 2014.  The applicants continued to rely upon that application.  There is one particularised ground in that application:

   Ground

   The Tribunal misconstrued the Clause 572.223(1)(a) of the Migration Regulations.

   Particulars

   The Tribunal construed erroneously (and narrowly) as the applicant provided all the documents required for the genuine temporary resident demonstration including but not limited to financial capacity, health insurance coverage and English proficiency.

   Also [T]ribunal failed to take into account the following points since the applicant history of staying in Australia was not only as a student visa holder but also 485 visa which means the applicant was not in Australia for the past 7 years only to study same level course in addition his circumstances in home country is reasonably stable due to his father business:

   The nature of the breach;

   Significance of the breach;

   Whether the breach deliberates;

   Role of the Department;

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

   Other circumstances such as illness of close family member;

   Intervening holiday periods;

   Offer of re-enrolment;

   Other issues raised (errors in original)

7. The application is supported by a short affidavit.  I received [1]-[5] of the affidavit as evidence and the balance as a submission.  I also have before me as evidence, the court book filed on 3 July 2014. 

8. On 6 February 2015, Mr Shah sent a letter by email to the Court seeking an adjournment.  This was put on the basis that he had contacted a lawyer who was going to handle his case, but that the lawyer needed time to prepare documents and to study the case.  My associate informed Mr Shah that he should attend court in order to make any adjournment application.  Mr Shah made that application at the outset of today’s hearing. 

9. Mr Shah told me that he had engaged the services of a lawyer named Adam Khaze, but that Mr Khaze was unable to attend court today and would need time in order to prepare a case.  Mr Shah provided a business card for a business called Home Immigration Services.  There was no name of any individual on the card, but my associate was able to identify Mr Khaze from the OMARA website.  I accept that Mr Khaze is a registered migration agent.  There is no indication, however, that Mr Khaze is a legal practitioner.  In the circumstances, it is unlikely that he would be able to provide professional legal services.  I declined the adjournment application. 

10. Mr Shah is concerned that his visa application was rejected in circumstances where he satisfied all the visa criteria apart from that specified in clause 572.223(1)(a).  That criterion specifies that the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances, the applicant’s immigration history and any other relevant matter.

11. It is apparent from the Tribunal decision that this criterion was a concern to the Tribunal and that it was discussed at the hearing. There is no arguable case that the Tribunal breached its obligations under s.360 of the Migration Act 1958 (Cth). Neither do I accept that there is an arguable case that the Tribunal misconstrued the visa criterion. The assessment by the Tribunal was a subjective one as is probably necessarily the case. There was some evidence available to the Tribunal to support the findings reached. There is no arguable case of error on the face of the application and no arguable case of error is apparent to me from my own reading of the material.

12. At the time of the Tribunal decision, Mr Shah was enrolled in a Diploma of Business course.  He confirmed that he successfully completed that course in May 2014.  He then enrolled in an Advanced Diploma of Management as he had foreshadowed to the Tribunal.  That course, he told me, is due for completion in March or April this year.

13. Mr Shah also confirmed that on completion of that course, it is his intention to return to India in order to take over the running of his father’s business.  That is also consistent with what he told the Tribunal.  It would seem unfortunate if Mr Shah were compelled to leave Australia so close to the completion of his desired course of study.  That is a matter for the Minister and his Department to consider.  There is no legal basis to prolong these proceedings. 

14. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Rules 2001 (Cth).

15. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,326.  Mr Shah did not wish to be heard on the question of costs.  I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  12 February 2015