SINGH v Minister for Immigration

[2016] FCCA 3436

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3436

Catchwords:
MIGRATION – Judicial review of a decision of the Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – grounds of application impermissible merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.65
Migration Regulations 1994 (Cth), Sch.2 cl.573.223(1)(a)

Applicant: AMANJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2728 of 2015

Judgment of: Judge Hartnett

Hearing date:	21 November 2016
Delivered at:	Melbourne

Delivered on: 21 November 2016

REPRESENTATION

Counsel for the Applicant:	In Person
Counsel for the Respondents:	Mr Leerdam

Solicitors for the Respondents: DLA Piper

ORDERS

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

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2728 of 2015

AMANJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed under the Migration Act 1958 (Cth) (‘the Act’) seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 18 November 2015. The Tribunal affirmed a decision by a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa under s.65 of the Act. The delegate refused the visa application on the basis that the Applicant did not satisfy cl.573.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) because the delegate was not satisfied that the Applicant intended genuinely to stay in Australia temporarily. 

2. The grounds of application are as follows:-

   “I applied for a student visa, subclass 572 on 15 July 2014.

   My visa application was refused by the Department of Immigration on the grounds that I did not satisfy the requirement criteria.  I was not satisfied with the decision of D.I.B.P. as I believe that I am a genuine student who wanted acquire (sic) more skills and knowledge by studying business administration courses. 

   Being unsatisfied with D.I.B.P. decision, I applied for review application to the Tribunal.  I was invited to attend hearing where I presented arguments and gave evidence to support my application.  However, the Tribunal affirmed the decision. 

   I am not satisfied with the decision of both D.I.B.P. and MRT.  Therefore, I want to appeal against the decision in the court.” 

3. The Applicant filed with his application an affidavit affirmed by him on 10 December 2015.  He said in that affidavit that he was not satisfied with the decision made by the Tribunal and further: -

   “I believe they have not considered the evidence that I provided to support my application.”

4. What evidence it is that the Applicant claims the Tribunal did not consider, is unknown to the Court. There is no ground relating to that assertion in the grounds as stated in the application. The ground as stated in the application does nothing more than state that the Applicant disagrees with the decision of the Tribunal and, indeed, the delegate, which is not a relevant consideration for the Court. No jurisdictional error is identified in the ground as stated in the application, nor any other evidence or material put before the court by the Applicant. The Court is satisfied for the reasons which follow, that the application fails to make out any jurisdictional error in the decision of the Tribunal. The application shall be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Rules 2001 (Cth).  Costs shall follow that dismissal in the sum as provided for in the Federal Circuit Rules 2001 (Cth) Schedule scale of costs. 

5. On the hearing this day, the Applicant confirmed that he had been served with the First Respondent’s outline of submissions, and that same had been translated to him.  The Applicant is a litigant in person and is assisted by an interpreter in the Punjabi and English languages.  I note the Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages when the Applicant appeared before the Tribunal on 12 October 2015 to give evidence and present arguments. 

Background

1. The Applicant was born in 1988 in India.  He is a citizen of India.  On 24 November 2007, he was granted his initial Student (Class TU) (subclass 573) visa offshore which was valid until 15 March 2011.  This visa was granted for the Applicant to study a Diploma of Commerce at Homesglen Institute of TAFE and a Bachelor of Business at Deakin University.  The Applicant arrived in Australia on 29 January 2008. 

2. The Applicant started the Diploma of Commerce course and undertook semester 1.  However, he failed most of his subjects.  He did not commence the Bachelor of Business course.  He then changed courses and commenced a Certificate III Food Processing (Retail Baking) course.  He told the Tribunal he chose a trade in baking because he liked cooking at home.  He had no work experience in the cooking or baking industry.  As set out in the Tribunal Statement of Decision and Reasons (‘the Decision Record’) at paragraph 17, the Applicant did not contact the Department of Immigration and Citizenship (as it then was)(‘the Department’) in relation to the changing of his course from a higher education course of study to a vocational course. He explained to the Tribunal that he was not sure why he did not notify the Department.  He said further that he did not change his visa subclass at the time he changed his course because he was not too sure that he had to do that. 

3. As set out in paragraph 18 of the Decision Record, the Tribunal invited the Applicant to comment on the observation that he came to Australia through the streamlined visa processing for a subclass 573 visa, but then shortly changed to subclass 572 courses, which may be indicative that he planned to arrive and stay in Australia, and was not a genuine student.  The Applicant replied, “No.” 

4. The Applicant commenced a Diploma of Business immediately after completing the Certificate III Retail Baking course. 

5. Between April 2010 and June 2010, the Applicant returned to India to have surgery.  He deferred his course whilst he was away.  He told the Tribunal he thought he studied until the end of 2010.  He was very vague about when he ceased the course.  The Tribunal noted to the Applicant that the Applicant only undertook four subjects over 18 months between June 2009 and November 2010. The Applicant was vague about when he studied in this period and when he ceased studying.

6. The Applicant did not complete the Diploma of Business course. 

7. In late 2010, the Applicant enrolled in two new courses:  a Certificate IV in Business and a Diploma of Management.  After completing those two courses at the end of 2011, the Applicant ceased studying. 

8. On 4 May 2011, the Applicant had been granted a further Student (Class TU) (subclass 572) visa until 15 March 2012.  On 13 March 2012, the Applicant lodged an application for a Temporary Skilled (Class VC) (subclass 485) visa which was granted on 16 January 2013 until 16 July 2014.  During 2012, the Applicant did not study, although he worked at Woolworths.  He travelled to India between October 2012 and January 2013.  Following the granting of his skilled visa, the Applicant became a pastry cook at Woolworths at an instore bakery. 

9. Between 2008 and the end of 2013, the Applicant worked at Woolworths.  He worked only part-time hours.  He stated to the Tribunal, as set out in paragraph 25 of the Decision Record, that he worked part time because being a pastry cook was a tough job. He nominated for casual hours. 

10. Between January 2013 and November 2013, and between December 2014 and February 2015, the Applicant undertook a Certificate III in Light Vehicle Mechanical Technology.  Between February 2015 and June 2015, he undertook a Certificate IV in an Automotive Mechanical Overhauling course. 

11. As set out in paragraph 29 of the Decision Record, the Tribunal asked the Applicant why he did not disclose to the Department, earlier than the hearing, that he had undertaken automotive studies.  He responded that he was not too sure of the guidelines. 

12. Between December 2013 and December 2014, the Applicant did not study and undertook random casual jobs.  He travelled to India between 5 January 2014 and 22 February 2014.

The Subject Visa

1. On 15 July 2015 the Applicant applied for a Student (temporary) (class TU) (subclass 572) visa (which is the subject of the current review) pursuant to cl.572.223(1) of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations). A criterion for the grant of the visa is that the Minister be satisfied that the Applicant intends genuinely to stay in Australia temporarily. Ministerial Direction 53 sets out the factors which must be taken into account when “assessing the genuine temporary entrant criterion for Student visa applications.”

2. Clause 572.223 of the Regulations is relevantly as follows:-

   “(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) the applicant meets the requirements of subclause (2).

   (2) An applicant meets the requirements of this subclause if:

   (a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

   (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii) any other relevant matter; and

   (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.”

3. On 17 July 2014, the Applicant was invited to comment on his circumstances in relation to the genuine temporary entrant criterion and to provide other documentation.  On 26 August 2014 the Applicant provided, relevantly, the following documents to the Department:- 

   a)a statement of purpose dated 25 August 2014;

   b)a letter to the Department dated 26 June 2014; and

   c)evidence of economic/home ties in the form of a document regarding the sale of property in India.

Consideration

1. The Tribunal considered the Applicant’s circumstances, immigration history and other relevant matters and was not satisfied the Applicant intended genuinely to stay in Australia temporarily. Accordingly, the Tribunal found the applicant did not meet the criteria set out in cl.572.223(1)(a) of the Regulations. The Tribunal reached that conclusion after a careful consideration of the matters before it. The Tribunal discussed with the Applicant the Tribunal’s concern that he was not a genuine student; including making the observation to the Applicant that he had been in Australia for seven years and had obtained a number of qualifications. The Tribunal was unclear as to why he needed further qualifications from the courses he proposed to study.

2. The Tribunal set out in its Decision Record, in particular at paragraphs 43 to 45 inclusive, the reasons for its decision to affirm the decision of the delegate.  It noted that the Applicant had been in Australia for a long period of time and undertaken a wide range of courses and changed courses several times without any cogent reason.  The change in career pathways from accounting, to retail baking, business, and then automotive studies and now to business administration gave the Tribunal significant concerns as to the Applicant’s intent.

3. The Tribunal had significant reservations that the Applicant was planning to work in his father’s business in India, as set out in paragraph 44 of the Decision Record and found rather that he was seeking to maintain residency in Australia.  The Tribunal noted the Applicant had no clear plans for his studies or coherent plan as to his career future by the courses he was proposing to study.  The Tribunal had significant concerns that the Applicant was using the student visa program not for the purposes of future employment or to improve his employment prospects in his home country, and therefore the Tribunal was not satisfied the applicant intended genuinely to stay in Australia.

4. The Tribunal took into account the gaps in the Applicant’s study and the fact that he had undertaken a diverse range of occupations whilst in Australia which would serve as an incentive to remain in Australia.  The Applicant had no work history in India other than working without pay in his father’s clothing shop.  The Tribunal noted further in paragraph 45 of its Decision Record that the Applicant had held a skilled visa whilst in Australia and worked in that period, and that fact was indicative that he wished to remain in Australia and to work in Australia.

5. The Tribunal decision was thorough. The Tribunal put to the Applicant all of the matters that it was necessary to so put in the Tribunal’s consideration of the relevant factors under Ministerial Direction 53.  It is obvious on a fair reading of the Tribunal’s decision record that the Tribunal was cognizant of the need to have regard to Direction 53 and its factors.

6. The application for judicial review is without merit and is dismissed with costs following such dismissal.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 17 January 2017