Shukla v Minister for Immigration

[2017] FCCA 2594

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHUKLA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2594

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Student (Temporary) (Class TU) (Subclass 572) visas – the Tribunal made adverse credibility findings in relation to that criteria that were open on the material before the Tribunal – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, cl.572.223 of Schedule 2

First Applicant: HITESH CHANDRAKANT SHUKLA

Second Applicant: MEDHA HITESH SHUKLA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1650 of 2017

Judgment of: Judge Street

Hearing date: 26 October 2017

Date of Last Submission: 26 October 2017

Delivered at: Sydney

Delivered on: 26 October 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms S He
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1650 of 2017

HITESH CHANDRAKANT SHUKLA

First Applicant

MEDHA HITESH SHUKLA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 4 May 2017 affirming a decision of the delegate not to grant the applicants Student (Temporary) (Class TU) (Subclass 572) visas.

2. The first applicant is a citizen of India and applied for the visa on 1 March 2016. On 18 May 2016, the delegate found the applicants failed to meet the criteria for the grant of a visa. 

The Tribunal’s decision

1. The applicants applied for review on 30 May 2016. By letter dated 7 March 2017, the applicants were invited to attend a hearing on 3 April 2017. The first applicant appeared on that date to give evidence and present arguments. 

2. The Tribunal identified the background to the application for the visa and that the delegate had held there was not sufficient evidence to demonstrate the first applicant was a genuine student and therefore did not meet the requirements of cl 572.223 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). The Tribunal summarised what occurred at the hearing and the applicant’s evidence in relation to the Certificate IV, Diploma and Advanced Diploma of Marketing he was acquiring in the restaurant industry.

3. The Tribunal made reference to the applicant’s statutory declaration that he was enrolled to study hospitality management and that he did not think it was the right decision and did not receive sufficient guidance from his agent at the time. Accordingly, the first applicant referred to this being the reason he changed courses and now proposes to complete his marketing studies.

4. The applicant referred to not achieving satisfactory course progress during his student visa period because his father had been ill. The applicant alleged that his father being unwell was the reason why he could not concentrate on his study. It was identified that he alleged he suffered a back problem for which he had received treatment. 

5. The Tribunal identified the requirements of cl 572.223(1)(a) of Schedule 2 to the Regulations, which relevantly refers to the applicant intending genuinely to stay in Australia temporarily. The Tribunal was not satisfied there was sufficient evidence of the applicants plans or prospects in India and whether there is sufficient incentive to return, given the length of stay in Australia. 

6. The Tribunal found on the basis of the applicant’s past employment and his wife’s employment in Australia, that it was of the view that there was a greater incentive for the applicants to remain in Australia than to return to India. The Tribunal found that the applicant had ample opportunity since arriving in 2008 to complete studies that will benefit him in the future, and is not satisfied it is necessary for him to undertake suite of dedicated marketing courses in order to fulfil his stated goal of opening a restaurant in his home country. 

7. The Tribunal was not satisfied the applicant intends genuinely to stay in Australia temporarily and accordingly found the applicant failed to meet the criteria under cl 572.223(1)(a) of Schedule 2 to the Regulations. The Tribunal identified that was an essential requirement and that the second applicant had been included as a member of the family unit and accordingly, affirmed the decision not to grant the visas. 

Before this Court

1. On 22 June 2017, a Registrar of the Court made orders providing the applicant with an opportunity to put on an amended application, affidavit evidence and submissions. The applicant did file an affidavit relating to a proposed trip, but no other document.

2. The ground in the application are as follows:

   1. Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue) as mentioned in affidavit attached here with .

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review.  The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. 

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the court. 

5. From the bar table, the applicant maintained that what he had said in his statutory declaration was the true position and disagreed with the finding by the Tribunal that he did not intend to stay temporarily.  Nothing said by the applicant from the bar table identified any jurisdictional error. The applicant’s submissions were in substance an invitation for this Court to engage in an impermissible merits review.  This Court does not have power to revisit the merits. 

6. In relation to the ground in the application, the Tribunal identified mandatory criteria that the applicant had to meet in order to be granted the visa. The Tribunal made adverse credibility findings in relation to that criteria that were open on the material before the Tribunal and cannot be said to be irrational, illogical or unreasonable. The applicant’s disagreement with the adverse finding does not identify any jurisdictional error. 

7. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the context of the review. 

8. No jurisdictional error is made out by ground 1 of the application. As the application fails to make out any jurisdictional error, the application is dismissed. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  8 November 2017