Sharma v Minister for Immigration & Anor
[2015] FCCA 575
•16 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARMA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 575 |
| Catchwords: MIGRATION – Judicial review – Migration Review Tribunal – visa – student visa – whether the tribunal engaged in jurisdictional error – ministerial direction 53 – no error demonstrated by tribunal – application dismissed – costs awarded. |
| Legislation: Migration Act 1958 (Cth) Ministerial Direction 53 |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 Minister for immigration and Citizenship v Khadgi and Another [2010] FCAFC 145 |
| Applicant: | NITIN SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 272 of 2014 |
| Judgment of: | Judge Vasta |
| Hearing date: | 9 March 2015 |
| Date of Last Submission: | 9 March 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 16 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Travers |
| Solicitors for the Applicant: | Chand Lawyers |
| Counsel for the Respondents: | Mr McGlade |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the application filed on 26 March 2014 be dismissed.
That the Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 272 of 2014
| NITIN SHARMA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of the decision of the migration review tribunal. The applicant, Nitin Sharma, is a citizen of India. In 2008, he arrived in Australia to commence study. Since arriving in Australia, he has completed a number of courses. These are:-
· Diploma of Hospitality and Management (partially completed);
· Diploma of Management (completed 21 October 2011);
· Advanced Diploma of Management (completed 15 June 2012);
· Certificate IV in Business (completed for July 2013);
· Diploma of Marketing (completed 7 February 2014)
The Applicant applied for a subclass 572 Student Visa on 6 August 2012. On 16 November 2012 the delegate of the Minister refused to grant the Visa. The Applicant appealed this decision to the Migration Review Tribunal. On 6 March 2014, that Tribunal affirmed the decision of the delegate.
In effect, the Migration Review Tribunal was not satisfied that the Applicant is a genuine temporary entrant as a student. Therefore the Applicant did not meet the criteria that were needed to obtain a Visa.
The Applicant then brought the current proceedings in this Court.
The grounds of review are set out in the amended application filed in this Court on 3 September 2014. They are:-
“1. The Tribunal engaged in conduct which amounted to jurisdictional error that it failed to consider, on balance, all relevant factors in assessing the applicant as a genuine temporary entrant.
Particulars:
The Tribunal failed to consider the application against all relevant criterion, including the factors specified in Ministerial Direction No 53 – Assessing the genuine temporary entrant criterion for student visa applications, and failed to assess whether, on the balance, the genuine temporary student criterion was satisfied.
2. The Tribunal engaged in conduct which amounted to jurisdictional error in that its decision that the applicant was not a genuine temporary entrant was unreasonable or illogical.
Particulars:
The Tribunal unreasonably or illogically:
a. concluded that the applicant did not plan to progress to higher levels of study relevant to his career goals in his home country;
b. failed to consider the applicant’s circumstances in his homer country; and
c. failed to consider the value of the proposed study to the applicant’s future.”
The Tribunal had to be guided by Ministerial Direction number 53 which deals with assessing the genuine temporary entrant criterion for Student Visa applications. The Applicant made particular mention of the preamble to that direction. That preamble reads:-
“The Australian Government operates a Student Visa Program that enables people who are not Australian citizens or Australian permanent residents to study in Australia. A person who wants to study under the Student Visa Program must obtain a Student visa before they can commence a course of study in Australia. Amongst other things, a successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to enter and remain in Australia temporarily, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be 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 intention of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter
This Direction provides guidance to decision makers on the factors that should be considered in weighing up: the applicant’s circumstances; the applicant’s immigration history, the intentions of a parent, legal guardian or spouse of a minor applicant, and any other relevant matter to determine whether the applicant genuinely intends to stay in Australia temporarily. This Direction is binding on all decision makers.
Decision makers must take a balanced approach between the need to make a timely decision on a Student visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to say in Australia temporarily.”
In Part 2 of that Direction there are a number of factors listed for decision makers to use as a guide. Importantly, directional one says
“Decision makers should not use the factors specified in this Direction as a checklist. Rather, they are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.”
Ground One
Ground One upon which the Applicant relies, is that the Tribunal did not consider all of the criteria that it was supposed to consider. These criteria include the Applicant’s circumstances in India and the Applicant’s ties to India. Complaint was made that the Tribunal focused incorrectly on their conclusion that the Applicant had “not advanced from a lower level to a higher level of study”.
It was submitted that if the Tribunal had looked at this matter properly that the issue was not a matter of progressing from a lower level to a higher level of study. It was submitted that such a consideration (of progression) is irrelevant. It was submitted that all that needed to be shown was that the courses that were undertaken were for the benefit of the applicant’s future life in India.
It was submitted that the Applicant had ties to India and had told the Tribunal that he wishes to “return to India to operate his family agricultural business and requires the knowledge gained from his study to do this”. He also told the Tribunal that “he does not want to stay in Australia long term; his father has died and is mother needs him to return home to help with the family agriculture business”.
It was submitted by the Applicant that the Tribunal had not taken properly into account that such study was of benefit to the Applicant in his stated goal. It was also submitted that the Tribunal had not properly taken into account what the Applicant had said about his ties to India. It was submitted that this is illustrated by the fact that the Tribunal did not specifically mention the ties to India and also by the fact that the Tribunal wrongly assumed that, unless there was progression from lower study to higher study, there could not be any benefit to the Applicant.
What the Tribunal said is this:-
“47.The Tribunal asked the applicant what his career plan was given that he was undertaken so many different vocational level course. The applicant said that he wants to return to India to operate his family agriculture business and requires the knowledge gained from his study to do this. The Tribunal said it was concerned that he came to Australia in 2008 and since that time he has undertaken a number of vocational courses in cookery, hospitality and more recently in management, marketing and business. It said there was no clear and obvious connection between the course he intended to study and has subsequently undertaken and his career goal of farming in India.
48. The Tribunal put to the applicant that on the basis of the applicant’s evidence of his studies he has not advanced from a lower level to a higher level of study, instead he has studied different courses at the Diploma level, then a course a Certificate level and proposes to do another course at the Advanced Diploma level. The Tribunal explained that without evidence of a clear study plan and progression it may not be satisfied that the applicant meets the provision in cl.572.223(1)(a) regarding being temporary genuine applicant as a student. It said that the purpose of this in the legislation is for the Tribunal to satisfy itself that the applicant is in Australia temporarily to undertake their proposed study and return home.
49. The Tribunal said it would have regard to Ministerial Direction 53 Assessing the genuine temporary entrant criterion for student visa applications and consider this as a guide to decision makers. The Tribunal said it would consider the applicants circumstances as a whole, including what purpose and value the completion of the applicant’s various vocational courses will serve for the applicant. The Tribunal said its concern is that students who undertake a range of short courses in one sector of education without an obvious connection to a career goal may be using the student visa process to remain in Australia longer than they would ordinarily be permitted. The applicant responded by saying that he does not want to stay in Australia long term, his father has died and his mother needs him to return home to help with the family agriculture business. He stated that he is studying while he is young to better prepare himself for his future. The Tribunal commented that if he undertakes the courses he is proposing, he will also have an education loan to repay once he returns to India and the applicant acknowledged this. The Tribunal noted the applicant’s representative’s submission that the applicant’s studies in marketing may be of assistance to him in marketing agricultural produce when he returns to India. The Tribunal said it had not made up its mind on this, but it is a requirement it will have to consider.
50. The Tribunal has considered the applicant’s circumstances, his stated career goals, his immigration history and the courses he has undertaken and qualifications he has acquired in Australia to date and is unable to be satisfied that the applicant is a genuine applicant for entry and stay in Australia as a student temporarily. The Tribunal finds that the applicant has been studying in Australia for at least 5 years and during that time he has changed direction and continued to undertake a series of different vocational courses at a similar or lower level, some of which were short courses of less than 6 months. The Tribunal has considered that the applicant claims that the course he has undertaken could be useful in his family agricultural business in India, but does not find this convincing. In particular, the Tribunal does not consider this is indicative of a clear study plan which advances the applicant from lower to higher level of study relevant to his career goals in his home country. The Tribunal considers his choice of study is indicative of the applicant’s attempt to remain in Australia indefinitely by completing a series of short courses.”
The question to be asked is this: if a decision-making body fails to mention an issue, is it safe to conclude that the decision making body has failed to consider that issue?
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at paragraph 47, the Court said:-
“[47] The inference that the tribunal has failed to consider an issues may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issues at least has been identified as some point…”
In Minister for immigration and Citizenship v Khadgi and Another [2010] FCAFC 145 at paragraphs 60 to 62 the Court said:-
60 In some cases it may be apparent that amongst the factors to which a decision-maker is bound to have regard, there is one factor (or perhaps more than one) which is critical or fundamental to the making of the decision in question. This was true of the particular matter referred to by Mason J in The Queen v Toohey; Ex Parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 338. As his Honour’s reasons in The Queen v Hunt; Ex Parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329 show, the relevant statutory provisions may make clear that a particular factor is “a fundamental matter for consideration”. But the converse is also true. The relevant statutory provisions may show that a particular matter to which a decision-maker must have regard is not fundamental to the decision-making process in the sense discussed by his Honour: see, for example, Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [57] (p 164) (per Sackville J).
61 We respectfully agree with Sackville J in Singh where his Honour pointed out that the expression “have regard to” is capable of different meanings depending on its context. As his Honour said at [54] (p 163):
.... a statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and “give weight to them as a fundamental element in making his [or her] determination”: R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329 per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. But the phrase “have regard to” can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.
62 In our opinion, the prescribed circumstances to which the Minister must have regard in the present case are of the latter kind. There are 10 different criteria that are prescribed by reg 2.41 for the purposes of s 109(1)(c) of the Act. It is hard to see why a decision-maker should be required to treat each and every one of them as fundamental for the purposes of s.109. Although the Minister must have regard to each and every one of the prescribed circumstances, not all of them will be central or fundamental to every case in which the Minister is called upon to make a decision under s 109(1) of the Act.
In Steed v Minister for Immigration and Ethnic Affairs (1981) ALD 126, the Court said:-
“…It is a mistake to conclude simply from the fact that judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention. It is not in anyone’s interests that the judge or Tribunal be expected to set out every consideration which passes through his mind, although some, and usually the most significant, will be expressly dealt with.”
In this case the Tribunal has said at paragraph 49
“The Tribunal said it would have regard to Ministerial Direction 53 Assessing the genuine temporary entrant criterion for student visa applications and consider this as a guide to decision makers. The Tribunal said it would consider the applicants circumstances as a whole, including…”
It was at this point that the Tribunal spoke of its concern about the courses that the Applicant was undertaking. It was the applicant who then responded by “saying that he does not want to stay in Australia long term his father has died and his mother needs him to return home to help with the family agriculture business”. At the beginning of paragraph 50 it reads “the tribunal has considered the applicant’s circumstances, his stated career goals, his immigration history…”
To my mind it cannot be said that the Tribunal has failed to take into consideration those matters that it had to consider pursuant to Ministerial Direction number 53. Just because the Tribunal has come to a conclusion contrary to that which the Applicant considers it should have come to in such consideration, does not mean that there was no consideration. The passages in the previous paragraph to which I have referred, show that there was a consideration sufficient to comply with Ministerial Direction 53.
As far as the courses of study undertaken by the Applicant are concerned, the Tribunal said that there was no clear and obvious connection between the courses the Applicant had undertaken and his career goal of running the family agriculture business in India. The criticism made about the Tribunal is their so-called reliance on the fact that the Applicant had not advanced from a lower level to a higher level study. Such a statement made by the Tribunal needs to be taken together with the fact that the Tribunal wanted from the Applicant some evidence of a clear study plan and progression. This was the same point I made to Counsel during the hearing of the matter. That is, unless one can see that there is some ultimate goal being pursued and that the manner in which the studies are being undertaken conforms with that goal, a rational inference is that the Applicant is using the Student Visa process to remain in Australia longer than he would ordinarily be permitted. It is not necessary that this is the inference that I make of the circumstances; it is sufficient that such an inference was open to the Tribunal.
I cannot see any jurisdictional error made out in this ground.
Ground Two
Ground Two is a wider ground than Ground One. Ground Two claims that the decision that the Applicant was not a genuine temporarily entrant was unreasonable or illogical. The Respondent referred me to many authorities that say, in circumstances such as this one, a decision cannot be classed as unreasonable. This is because the term “unreasonableness” can only apply to matters where the decision-making body is exercising a discretion. In cases before the Migration Review Tribunal, there is no discretion being exercised; rather it is a simple decision as to whether criteria are met or not met. There is much force in this submission.
However, the decision may still be illogical. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at paragraph 130, the Court said:-
“130 In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an onion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
The complaint is that in failing to consider the Applicant’s stated career path appropriately the Tribunal acted unreasonably. It was submitted that consideration of the Applicant’s enrolment history in light of all of his relevant circumstances would prevent any reasonable decision maker from determining that the Applicant was enrolling in courses to maintain residency in Australia and therefore was not a genuine temporary student.
For this ground to succeed, it needs to be demonstrated that such a decision was so “illogical” or even “unreasonable” that no fact-finding Tribunal could have come to such a decision if it were acting properly.
As I stated in the argument, I do have some problem with that submission. One would think that a person who came out to Australia to study would have some goal in mind for which those studies would assist. This Applicant has stated that he wants to run the family agriculture business in India. The courses of study that he has undertaken lack any cohesion and it is difficult to see exactly how such subjects are to be used. It is instructive to note that the Tribunal did put their concern about the manner of studying to the Applicant. There is no record of him disclosing a cohesive plan or explaining to the Tribunal exactly what that plan is. It was obvious to me that such a plan was not evident.
All in all, I cannot accept that the decision made by the Tribunal could be described as either illogical or unreasonable.
I cannot find any jurisdictional error in this ground.
Conclusion
Having found no jurisdictional error, I dismiss the application with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 16 March 2015
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