Sharma v Minister for Immigration
[2018] FCCA 1382
•28 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARMA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1382 |
| Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal decision – citizen of India – student visa – failure to complete courses – no certificate of enrolment – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.360A, 366, 366A, 476 Migration Regulations 1994 (Cth), sch.2, cll.572.222, 572.223 |
| Cases cited: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551 |
| Applicant: | NAVNEET SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 362 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 28 May 2018 |
| Date of Last Submission: | 28 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 28 May 2018 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs in the amount of $5,500 by 28 June 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 362 of 2016
| NAVNEET SHARMA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered extemporaneously and subsequently edited)
Introduction
The applicant, Mr Navneet Sharma (“Mr Sharma”) seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 6 July 2016. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant Mr Sharma a Student (Temporary)(Class TU) Vocational Education and Training Sector (subclass 572) visa (“Student Visa”). The Tribunal Decision appears in the Court Book (“CB”) at 86-92.
Background
The background to the Judicial Review Application is as follows:
a)Mr Sharma, a citizen of India, first arrived in Australia upon being granted a student visa on 23 May 2007: CB 74;
b)having held successive student visas since 2007, on 11 March 2015 Mr Sharma lodged the Student Visa application the subject of this review in which Mr Sharma was wanting to undertake a Certificate III and IV in patisserie and a Diploma in Hospitality Management (the “Courses”): CB 1-8 and CB 74;
c)Mr Sharma’s application was accompanied by a number of supporting documents including health cover, financial records and affidavits of support, language competency certificates and Mr Sharma’s statement regarding the genuine temporary entrant criterion in which he states:
i)he selected the Courses because his aim was to work in his uncle’s “baking industries” for a few years and then start his own business and be a “competent entrepreneur” in any hospitality area so he needs “skills & extensive knowledge of Automotive” which is why he chose the Courses: CB 25;
ii)he chose to study in Australia because the Australian education system has a strong international reputation, the education provider employs industry aware teaching staff, and he felt that the Indian education system emphasised theoretical study rather than a practical approach: CB 24-25; and
iii)Australia is one of the best places to live as it is a young, vibrant and friendly country in which students can live, learn and grow, and if you want a quality education and a good lifestyle Australia “is the place to be”, however he had strong incentives to return to India as he was emotionally attached to his father, mother and brother and had future plans to open a business there: CB 26;
d)on 17 April 2015 the Delegate’s Decision was to refuse to grant Mr Sharma the Student Visa on the basis the Delegate was not satisfied that Mr Sharma intended genuinely to stay in Australia temporarily, and therefore found that he did not meet cl.572.223(1)(a) of sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 32-42;
e)Mr Sharma applied for review with the Tribunal on 11 May 2015 and on 5 July 2016 Mr Sharma attended a hearing before the Tribunal, by telephone, in which he was given prior notice that the Tribunal was going to assess if he intended genuinely to stay in Australia temporarily and provided a copy of Ministerial Direction No.53 (“Direction 53”): CB 43-57, CB 65-66 and CB 80; and
f)on 6 July 2016, the Tribunal affirmed the Delegate’s Decision not to grant Mr Sharma the Student Visa: CB 85-95.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)identified the relevant visa subclass as subclass 572, and noted the Delegate refused to grant the Student Visa because Mr Sharma did not satisfy the requirements of c1.572.223(1)(a) of sch.2 to the Migration Regulations: CB 87 at [3] and [7];
b)referred to cl.572.223(1)(a) of sch.2 to the Migration Regulations, and what Direction 53 required the Tribunal to have regard to when assessing if Mr Sharma was a genuine temporary entrant, but stated that the factors specified should not be used as a checklist but rather as guide to weigh up Mr Sharma’s circumstances when determining if he is a “genuine temporary entrant”: CB 88 at [11]-[13];
c)summarised what occurred at the Tribunal hearing, specifically noting that the Tribunal had informed and explained to Mr Sharma the issue in respect of whether he was a “genuine temporary entrant”: CB 89 at [14]-[15];
d)referred to Mr Sharma’s evidence that he came to Australia in 2007 on a student visa valid to 2009, he had applied for another student visa which was granted in 2009 until 2011, he had applied for a further student visa but does not clearly remember when that visa was granted (he thought it was 2012) but says it was valid until 2015, and found that Mr Sharma’s recall of his student visa history was poor and he needed significant prompting to recall how many student visas he had had and the years they were granted and expired: CB 89 at [16]-[17];
e)stated that Mr Sharma complained he did not know that he could continue studying while on bridging visas, though he had agreed that his bridging visas did not carry any condition preventing study and that he also agreed that the last course he had completed was in 2009 and that since then he has not completed any course: CB 90 at [19]-[21];
f)put to Mr Sharma that he had not completed any courses in the last 6 years, that this period of time spanned periods when he was on a substantive student visa as well as bridging visas, that his study area had ranged across diverse areas of study which were unrelated, that he continued to seek to study in the VET sector which was relatively cheap when compared with the higher education sector, that it appeared he had no study or career plan, and that he now sought a further student visa because he wished to prolong his stay in Australia: CB 90 at [21];
g)noted that in response to a question as to whether he had a career plan, Mr Sharma stated that he worked in Crown Casino as a bartender, and did not elaborate, while also pleading for the Tribunal to give him one more chance to prove himself: CB 90 at [22]-[23];
h)referred to Mr Sharma’s evidence that his parents and brother were in India, that his mother became sick from 2008-2009, but that since 2007 he had only returned to India once, in 2013, and that he calls his family once or twice a week: CB 90 at [24];
i)asked Mr Sharma why he had not gone to live in India, given that he claims his mother was gravely ill having undergone a heart operation and stated his response was he did not have a good job in India, and the Tribunal found that Mr Sharma did not choose to end his residence in Australia even though his family are in India and his mother is ill, and that his family and mother do not serve as a distinct incentive for him to cease his residence in Australia: CB 90 at [24];
j)found Mr Sharma’s statement of purpose: CB 47, to be general in nature and outweighed by other considerations: CB 90 at [26];
k)was not satisfied that Mr Sharma’s vague claims of having family problems or his mother having ill-health or medical operations account for what the Tribunal found was a lack of any study or career plan and a complete lack of completion of study since 2009: CB 90 at [22], nor was the Tribunal satisfied the Courses hold distinct value to his future because Mr Sharma has not completed any course since 2009, and therefore has not seen value in the Courses he has selected to undertake since 2009: CB 90 at [29];
l)considered that the reason Mr Sharma has not completed any course is because Mr Sharma is not interested in academic progress, or any career that might come from that progress, and is primarily interested in remaining in Australia, and seeks the Student Visa for that purpose rather than to undertake successfully the courses proffered: CB 90-91 at [29];
m)stated Mr Sharma conceded at the Tribunal hearing he had no current certificate of enrolment and had not studied since applying to the Tribunal for review in 2015: CB 91 at [33]; and
n)concluded Mr Sharma did not meet cll.572.222 or 572.223 of sch.2 to the Migration Regulations and therefore the Delegate’s Decision must be affirmed: CB 91 at [31] and [35].
Judicial Review Application
The grounds of the Judicial Review Application are as follows:
1. I Am not Aware of that I Can Study in MRT.
2. Not Enough money to Get A lawyer to Get Advise For my Case.
3. FAmily Problem in Home. I Get to much stress Not Able to Concentrate my Study.
Mr Sharma failed to file any affidavit in support of the Judicial Review Application.
On 14 September 2016 a Registrar of the Court made orders (“Registrar’s Orders”) to progress this matter to hearing on 28 May 2018, providing the opportunity for Mr Sharma to file and serve any amended application giving complete particulars, any supporting affidavits and to file written submissions prior to the hearing. Mr Sharma has not filed anything pursuant to the Registrar’s Orders prior to today’s hearing, and failed to appear today when the matter was called and then called again outside the courtroom.
In accordance with the Registrar’s Orders the Minister filed an outline of submissions. The Minister sought that the Judicial Review Application be dismissed with costs.
Consideration
Jurisdictional error
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine Mr Sharma’s claim for a Student Visa: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
No particularisation
Mr Sharma has not particularised the grounds of the Judicial Review Application. Although there was no submission that the Judicial Review Application could be dismissed on this basis, the Court notes the failure to particularise grounds of review is a sufficient basis to dismiss a judicial review application: AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; MZARG v Minister for Immigration & Border Protection [2018] FCA 624 at [25] per McKerracher J (and the authorities there cited).
The Court nevertheless remains alert to the possibility of legal error in the Tribunal Decision and addresses the grounds of review and other matters below: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J (“MZAIB”).
Ground 1
Ground 1 asserts no recognisable jurisdictional error. The Tribunal referred to the evidence of Mr Sharma in Tribunal Decision at CB 90 at [19]:
He agreed that his bridging visas did not carry any condition preventing study. Despite this he complained that he did not know that he could continue studying while on bridging visas and said this was why he had not completed his most recent courses in cooking and hospitality. His proposition is that he is waiting for the grant of a student visa before recommencing study.
The Tribunal went on to find at CB 90-91 at [29]:
The tribunal considers that the reason the applicant has not completed any course and has not [no] study plan is because the applicant is not interested in academic progress or any career that might come from that progress. As suggested at hearing, the tribunal finds the applicant is primarily interested in remaining in Australia and seeks the visa for that purpose, rather than to undertake successfully the courses proffered.
The Tribunal’s finding at CB 90-91 at [29] was a finding made based on a consideration of a number of matters including Mr Sharma’s mother’s health, his future goals, his inability to recall his immigration history and his lack of completion of any courses. It was a finding open to the Tribunal on the material before it, and reveals no jurisdictional error in the Tribunal Decision.
That Mr Sharma did not know he could study while on a bridging visa is irrelevant to the issue before the Court as it clearly not a jurisdictional error. An ignorance of the law, or inadequate knowledge of one’s entitlements under particular visas does not amount to an error of any kind attributable to the Tribunal.
At best for Mr Sharma this ground constitutes an invitation to the Court to engage in impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
No jurisdictional error in the Tribunal Decision is made out in ground 1.
Ground 2
In his application form to the Tribunal, Mr Sharma chose not to elect a representative of any kind to act on his behalf in relation to the Tribunal proceedings: CB 53 at Item 21. Further, it does not appear that any adjournment of the Tribunal hearing was requested in order to obtain legal representation.
There is no right to legal representation before the Tribunal: WZARX v Minister for Immigration & Border Protection [2014] FCA 423 at [14] per McKerracher J. In SZQFS v Minister for Immigration & Citizenship [2011] FCA 1244 at [30] per Flick J the Federal Court stated:
It is difficult to discern what is intended to be conveyed by that part of Ground One being the statement: “The applicant is not represented by a lawyer”. If that is a mere statement of fact, it does nothing more than state that fact; if it is intended to convey some entitlement to be provided with legal representation, any such entitlement is rejected.
In the present case if Mr Sharma is simply making a statement of fact that he could not afford a lawyer to advise him before the Tribunal, that is irrelevant to any question of judicial review in this case. If Mr Sharma is suggesting he did not have a lawyer to represent him before the Tribunal and that amounted to a jurisdictional error, there is no entitlement to be represented by a lawyer before the Tribunal, and this ground plainly fails in that regard.
Should Mr Sharma be suggesting he cannot afford a lawyer to advise him in relation to his case before this Court, there is no right to legal representation in judicial review proceedings under the Migration Act: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 at [27], [32] and [36] per Sackville, Marshall and Lehane JJ; SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; WZASY v Minister for Immigration & Anor [2017] FCCA 1623 at [20]-[21] per Judge Lucev (and cases there cited). It is not a requirement of procedural fairness for an applicant to have publically funded legal representation, nor is it a reasonable ground for an application or proceeding to be stayed because an applicant does not have such representation: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551 at [51] per Flick, Griffiths and Perry JJ.
No jurisdictional error in the Tribunal Decision is made out in ground 2.
Ground 3
Ground 3 simply pleads Mr Sharma cannot concentrate on his study at home because of family problems. No medical evidence was before the Tribunal, or before this Court, of the standard necessary for the assertion of Mr Sharma’s incapacity to be made out: Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[49] per Collier, Griffiths and Mortimer JJ; BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 at [35] per Perry J. Mr Sharma’s pleas are otherwise irrelevant to the Court’s task on judicial review in this case, because they seek to engage the Court in impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Further, that is particularly so when one considers the Tribunal Decision at CB 90 at [27]:
He made a vague claim about having 'family problems' and his mother having had a heart operation. As suggested the tribunal is not satisfied that the applicant's vague claims of having family problems or his mother having ill-health or medical operations account for what the tribunal finds is a lack of any study or career plan and a complete lack of completion of study since 2009.
The Tribunal considered the vague claim made by Mr Sharma and was not satisfied it accounted for, or justified, the lack of Mr Sharma completing any course of study for six years. The Tribunal considered this evidence, weighed it as it thought appropriate and came to its finding. The Tribunal performed its fact-finding function: Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
No jurisdictional error in the Tribunal Decision is made out in ground 3.
Other matters
In accordance with MZAIB, the Court has considered whether any jurisdictional error apart from the grounds of the Judicial Review Application is apparent on the face of the Tribunal Decision. None is, but the Court makes observations on three specific issues below.
Direction 53
The Court notes that the Tribunal did not have explicit regard to each factor of Direction 53 in the Tribunal Decision. The Tribunal:
a)was aware of its obligation to comply with Direction 53: CB 88 at [12];
b)was not required to specifically mention every factor in Direction 53: Sharma v Minister for Immigration & Border Protection [2015] FCCA 575 at [14] (citing Minister for Immigration & Citizenship v Khadgi & Anor [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 483; (2010) 119 ALD 26 (“Khadgi”) at [60]-[62] per Stone, Foster and Nicholas JJ), [15] and [18] per Judge Vasta; and
c)considered Mr Sharma’s evidence in relation to the factors, and considered the factors that were relevant to his circumstances and evidence: CB 89-90 at [18]-[27]; Maudhoo v Minister for Immigration & Border Protection & Anor [2015] FCCA 1741 at [17] per Judge Emmett; Brar v Minister for Immigration & Border Protection & Anor (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 (“Brar (No 2)”) at [22(c)(ii)] per Judge Lucev.
The Tribunal also noted Direction 53 was not to be applied as a “checklist” to determine if Mr Sharma is a genuine temporary entrant. On a fair reading of the Tribunal Decision it can be concluded that the Tribunal engaged in an active intellectual process and gave genuine consideration to the factors set out in Direction 53 to the extent necessary in Mr Sharma’s circumstances: Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [47] per Lindgren, Rares and Foster JJ: Khadgi at [60]-[62] per Stone, Foster and Nicholas JJ; Brar (No 2) at [22(c)(i)] per Judge Lucev.
Telephone hearing
The Court notes the Tribunal hearing was undertaken over the telephone. The Tribunal is empowered pursuant to s.366 of the Migration Act to obtain evidence over the telephone, and the Tribunal hearing invitation was consistent with the requirements of s.360A of the Migration Act. There appears to have been no objection to a telephone hearing by Mr Sharma, nor is there any evidence suggesting any difficulty in understanding, or any technical faults, that may have prevented Mr Sharma from having a real and meaningful opportunity to present evidence and arguments: SZNNE v Minister for Immigration & Citizenship [2010] FCA 194 at [49] per Katzmann J.
No certificate of enrolment
The Court notes that even if an error were found in the Tribunal finding regarding the genuine temporary entrant criterion, it was conceded by Mr Sharma at the Tribunal Hearing that he had no current certificate of enrolment and had not undertaken any study since filing the application for review with the Tribunal in 2015. Having made this concession, the Tribunal found Mr Sharma also failed to meet cl.572.222 of sch.2 to the Migration Regulations, and that is another basis on which the Tribunal has found Mr Sharma is not eligible for a Student Visa: VCAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1 at [23] per Gray J. It follows that prerogative relief out not be granted in any event because it would “lack utility”: SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J.
Conclusion and Orders
The Court concludes that the Tribunal Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
Costs must follow the event, and there will therefore be an order as sought by the Minister for Mr Sharma to pay costs in the sum of $5,500. The costs are to be paid by 28 June 2018.
I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 28 May 2018
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