SIHAG v Minister for Immigration

[2017] FCCA 2318

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIHAG v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2318

Catchwords:
MIGRATION – Migration Review Tribunal – student (temporary) (Class TU) subclass 572 visa – whether it was open to the Tribunal to consider whether the applicant had a coherent career path – whether the Tribunal was bound to confine its consideration of the matter to the issue the Tribunal as previously constituted had failed to properly consider.

Legislation:

Migration Act 1958, s.499
Migration Regulations 1994, Sch 2, cl.572.223
Direction No.53 Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications

Cases cited:

Craig v State of South Australia (1995) 184 CLR 163; (1995) 39 ALD 193; (1995) 131 ALR 595; (1995) 69 ALJR 873; (1995) 82 A Crim R 359; [1995] HCA 58

Applicant: MAHAVIR SIHAG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1104 of 2015

Judgment of: Judge Riley

Hearing date: 7 September 2017

Date of last submission: 7 September 2017

Delivered at: Melbourne

Delivered on: 7 September 2017

REPRESENTATION

Counsel for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Oliver Young

Solicitors for the first respondent: Sparke Helmore Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second respondent: Sparke Helmore Lawyers

ORDERS

1. The application filed on 18 May 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1104 of 2015

MAHAVIR SIHAG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Migration Review Tribunal.  The applicant applied for a student (temporary) (Class TU) subclass 572 visa.  A delegate of the Minister refused to grant the applicant the visa on the basis that he had not complied substantially with condition 8202 to which his last held student visa was subject.  That condition required the applicant to be enrolled in a registered course of study.  The delegate also found that the applicant had a gap of 294 days in his enrolment and found that he was not a genuine student.  The “complied substantially” criterion was repealed after the delegate’s decision was made.

2. The applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal found that the applicant did not intend genuinely to stay in Australia temporarily as required by cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

3. The applicant applied to this court for review. The court made orders by consent remitting the matter to the Tribunal to reconsider it according to law. The consent orders were made on the basis that the Tribunal had not properly considered paragraph 9 of Direction No.53, Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications, which was made under s.499 of the Migration Act 1958 (“the Act”).  Paragraph 9 concerned the applicant’s circumstances in her or his home country. 

4. Following the remittal, the Tribunal was reconstituted.  The Tribunal invited the applicant to attend a hearing before it.  The applicant appeared at the Tribunal hearing on 17 April 2015.  The Tribunal asked the applicant about numerous matters including his proposed career path.

5. The Tribunal found that the applicant did not intend genuinely to stay in Australia temporarily.  The principal finding of the Tribunal was that the courses that the applicant had sought to study did not represent a coherent career path. 

6. The Tribunal noted that the applicant had completed a law degree in India.  At paragraph 36 of its reasons for decision, the Tribunal summarised the applicant’s stay in Australia as follows:

   a)the applicant arrived in Australia on a subclass 572 student visa on 12 April 2009 to study at certificate III level in automotive technology;

   b)in January 2010, the applicant stopped studying his certificate III in automotive technology, after completing about 50% of it;

   c)he found work as a gardener and house painter;

   d)in July 2010, the applicant enrolled in a certificate IV in business;

   e)that enrolment was cancelled for reasons unknown to the applicant;

   f)in October 2010, the applicant enrolled in a certificate III in painting and decorating;

   g)on 27 July 2011, the applicant was granted a second subclass 572 student visa which was valid until 1 February 2013;

   h)in October 2011, the applicant stopped doing his certificate III painting and decorating course, after completing about 85% of it;

   i)the applicant travelled to India to care for his father who was unwell;

   j)in January 2012, the applicant returned to Australia;

   k)he was unable to find work and did not have the money to study;

   l)he was able to live with friends;

   m)in 2012, the applicant applied for another temporary residence visa that did not require him to study;

   n)in December 2012, the temporary residence visa was refused;

   o)the applicant was advised to enrol in a Diploma of Business, as his student visa was still valid;

   p)on 29 January 2013, the applicant applied for the student visa that is presently under consideration;

   q)on 3 May 2013, a delegate of the Minister refused to grant the applicant the student visa the applicant applied for on 29 January 2013;

   r)the applicant applied to the Tribunal for review of the decision;

   s)in about March 2014, the applicant completed a Diploma of Business;

   t)on 19 May 2014, the applicant commenced a certificate IV in marketing;

   u)on 8 August 2014, the Tribunal, which was differently constituted, affirmed the delegate’s decision on the student visa the applicant applied for on 29 January 2013;

   v)the applicant applied for judicial review;

   w)on 16 November 2014, the applicant completed the certificate IV in marketing;

   x)on 19 February 2015, orders were made by consent quashing the decision of the Tribunal made on 8 August 2014 and remitting the matter to the Tribunal for determination according to law; and

   y)on 16 April 2015 (which was the day before the Tribunal hearing), the applicant enrolled in:

   i)a Diploma of Marketing, which was scheduled to run from 20 April 2015 to 23 August 2015; and

   ii)an Advanced Diploma of Marketing, which was scheduled to run from 24 August 2015 to 7 August 2016.

7. The Tribunal’s second decision, being the decision presently under review, was made on 4 May 2015.  At that point, the applicant’s Diploma of Marketing course had been running for about two weeks and his Advance Diploma of Marketing course had not yet started.

8. As already mentioned, the Tribunal was particularly concerned about the applicant’s career path.  The Tribunal noted that the applicant had been in Australia for about six years and had completed one course at certificate IV level and one course at diploma level.  However, the Tribunal noted that neither of these courses related to the applicant’s previous legal qualifications and previous work experience in the legal field in India.

9. The Tribunal considered the applicant’s circumstances in India, particularly that his father was paralysed.  The Tribunal noted that the applicant had remained in Australia for an extensive period without study.  The Tribunal considered that the courses that the applicant proposed to undertake were of questionable value in relation to his proposed career path.  The Tribunal noted that it was required to have regard to Direction No.53.  The Tribunal summarised the effect of Direction No.53, but did not set it out in its entirety in its reasons for decision.

10. The Tribunal did set out in its reasons for decision part of cl.572.223 of Schedule 2 to the Regulations, which relevantly provided that, at the time of decision:

    (1)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; and

    (ii)    the applicant’s immigration history; and

    (iii)   if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)    any other relevant matter; and

    (b)…

11. In paragraph 31 of the Tribunal’s reasons for decision, the Tribunal recorded that, at the hearing, it put certain matters to the applicant regarding how the courses he had most recently enrolled in related to any coherent career path.  The Tribunal noted that the applicant had claimed that the marketing courses he had recently enrolled in would assist him to work in his cousin’s medical business.  When questioned about that, the applicant said that he may not necessarily work at his cousin’s business. 

12. Ultimately, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and, as such, did not meet cl.572.223(1)(a) of Schedule 2 to the Regulations.

13. The application to this court appears to have been formulated, and the applicant appeared at the hearing before this court, without the benefit of legal representation.

14. The first ground in the application is:

    There is an eror in order of MRT, Because MRT DID NOT follow Proper Direction of 53. Migration ACT. with my family condition in India.

15. The applicant, in oral submissions, read a prepared statement to the court.  That statement sounded as though it had been drafted with the assistance of a lawyer.  The applicant said that the Tribunal did not apply Direction No.53 properly.  He said that the Tribunal had imposed an additional unlawful criterion, in that the Tribunal had required him to demonstrate a coherent career path.  The applicant said that the Tribunal twice used the term, coherent career path, in its reasons for decision. The applicant said that there was no mention in the Regulations or in Direction No.53 of a career path.

16. The applicant referred to Craig v State of South Australia (1995) 184 CLR 163; (1995) 39 ALD 193; (1995) 131 ALR 595; (1995) 69 ALJR 873; (1995) 82 A Crim R 359; [1995] HCA 58, where the High Court said that a Tribunal would fall into jurisdictional error if it asked the wrong question or imposed the wrong test by imposing a criterion that is not in the relevant legislation.

17. The Minister pointed out that the Regulations in fact permit the Tribunal to consider any relevant matters. Clause 572.223(1)(a)(iv) of Schedule 2 to the Regulations specifically requires the Tribunal to have regard to any other relevant matter.  The Minister submitted that the applicant’s career path is a relevant matter because it can shed light on whether an applicant does intend genuinely to stay in Australia temporarily.

18. It seems to me that the Minister’s submission is correct.  Obviously, if a person is choosing courses that would not assist in her or his proposed career, her or his stated reasons for studying in Australia can properly be doubted.  It does not seem to me to be irrelevant to consider an applicant’s stated career path in assessing whether she or he genuinely intends to study in Australia temporarily, as opposed to remaining in Australia indefinitely.

19. In addition, the Minister pointed out that Direction No.53 specifically refers to career pathways.  Paragraph 12 of that direction says:

    Value of the course to the applicant’s future

    12.Decision-makers must have regard to the following factors in considering the value of the course to the applicant’s future: 

    a.Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country.  Decision-makers should allow for reasonable changes to career or study pathways. (emphasis added)

    b.Relevance of the course to the student’s past or proposed future employment either in their home country or a third country.

    …

20. It is true that paragraph 12(a) of Direction No.53 says that decision-makers should allow for “reasonable changes to career … pathways”.  However, the crux of paragraph 12 concerns whether the courses that the applicant is studying, or wishes to study, would assist in her or his future career.  If a person does not have a coherent career or study pathway, after allowing for “reasonable changes to career … pathways”, that circumstance would rationally bring into doubt whether that person intends genuinely to remain in Australia temporarily as a student.  For these reasons, I do not accept the applicant’s argument that the Tribunal asked the wrong question or imposed the wrong test.  In other words, whether the applicant’s study showed a coherent career pathway was a relevant matter.

21. Ground 1 in the application also refers to the Tribunal failing to properly consider the applicant’s family conditions in India.  In relation to this aspect of ground 1, the applicant said in his oral submissions that the Tribunal should have confined itself to a consideration of paragraph 9 of Direction No.53.  Paragraph 9 concerns the applicant’s circumstances in her or his home country.  Paragraph 9(b) particularly refers to:

    The extent of the applicant’s personal ties to their home country (for example, family, community and employment) and whether they would serve as a significant incentive to return to their home country.

22. Before paragraph 15 of its reasons for decision, the Tribunal set out the heading, “The applicant’s circumstances in India”.  The Tribunal then set out the applicant’s description of his family circumstances as follows:

    a)the applicant’s father was a farmer who became paralysed and had been confined to a wheelchair for six years;

    b)the applicant’s mother was a homemaker;

    c)his older brother is married, has a child and works on the father’s farm; and

    d)the applicant has three married sisters who live with their husbands’ families and contact the rest of the family about once a year.

23. At paragraph 37 of its reasons for decision, the Tribunal specifically said that it had had regard to the applicant’s family circumstances in reaching its decision.  The Tribunal said it did not accept that the applicant’s family circumstances represented a sufficient incentive for the applicant to return to India.  From the Tribunal’s reasons for decision, it is clear that the Tribunal considered the applicant’s family circumstances.

24. However, the applicant’s point was that the Tribunal should have confined itself to the matters referred to in paragraph 9 of Direction No.53, rather than considering other matters such as the applicant’s career path.  The Minister’s representative noted that the order remitting the matter to the Tribunal did not confine the matters that the reconstituted Tribunal could consider.  Indeed, in accordance with basic principles, the Tribunal was required to consider all of the facts as they existed at the time of its decision.  It would have been wrong for the Tribunal to merely consider the matters referred to in paragraph 9 of Direction No.53.  The Tribunal was required to consider all of the relevant criteria and all of the relevant facts, and make its decision based on all of those matters.  Ground 1 is not made out.

25. The second ground in the application is:

    According to MRT Decision, Im not a genuine student, But MRT. Member Did not even have a proper look to my ongoing study history, Even I have Paid half of my tuition fees for my further study. In that case MRT should have given me A chance to finish my leftover study.

26. The Tribunal summarised the applicant’s history and his current enrolment in paragraph 36 of its reasons for decision, as described in paragraph 6 above.  The Tribunal also noted that the applicant had made a part-payment for tuition fees.  In paragraph 38 of its reasons for decision, the Tribunal said:

    I have also had regard to the applicant’s recent performance and aptitude to his studies and the part-payment of fees.  In isolation, I take these to be positive indications of a genuine student.  But not when taken in the context of the applicant’s history in Australia and his previous qualifications or career path in India.  The courses he proposes to undertake now are of very questionable value to his previous qualifications or any career path the applicant has put forward. (emphasis added)

27. I am not persuaded that there is any substance in ground 2.  The Tribunal clearly considered the issues of the applicant’s study history, current enrolments and his part payment of fees.

28. As neither of the applicant’s written grounds has been made out, and as neither of his subsequent oral grounds has been made out, the application must be dismissed with costs. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date:       25 September 2017