Singh v Minister for Immigration

[2016] FCCA 436

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 436

Catchwords:
MIGRATION – Visa – student visa – impermissible merits review.

Legislation:

Migration Act 1958 (Cth), ss.65, 476 & 499

Migration Regulations 1994 (Cth), cl.572.223

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

First Applicant: JUGRAJ SINGH

Second Applicant: HANSBIR KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 138 of 2015

Judgment of: Judge Heffernan

Hearing date: 11 February 2016

Date of Last Submission: 11 February 2016

Delivered at: Adelaide

Delivered on: 9 March 2016

REPRESENTATION

The Applicants: In person

Counsel for the Respondents: Ms C Stokes

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The Application for Judicial Review filed on 22 April 2015 is dismissed.

2. The name of the second respondent be amended to read, ‘The Administrative Appeals Tribunal’.

3. The applicants do pay the first respondent’s costs fixed in the sum of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 138 of 2015

JUGRAJ SINGH

First Applicant

HANSBIR KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review, made pursuant to s.476 of the Migration Act 1958 (‘the Act’), against a decision of the Tribunal to affirm a decision of a Delegate of the Minister, dated 18 March 2015, refusing to grant the applicants’ Student (Temporary) (Class TU) visas under s.65 of the Act.

2. There is one ground of application expressed in narrative form as follows:

   “The purpose of my application submission in court is to request the court to provide me opportunity to prove that I am a genuine student and I wish to study further.  To be the owner of big business venture in Nursery sector, I am preparing myself gaining academic knowledge in management and business sector but my application has been refused by the department of immigration and MRT.  It’s been questioned that I am studying for long periods of time but I wish to submit that age factor and time factor should not be considered in terms of attaining education.  Moreover, MRT member has written in the decision that I did my previous qualification from Pakistan whereas as I have never been to Pakistan.  So I am afraid that some misunderstanding of nationality might have played huge part in the Decision of MRT.  I request you to please consider that my nationality is Indian and I have not completed any studies from Pakistan.”

3. The ground can be broken down into the following contentions:

   a)The applicants want this Court to give Mr Singh an opportunity to prove that he is a genuine student;

   b)The Tribunal erred by placing weight on an irrelevant consideration, namely the length of time Mr Singh has been studying; and

   c)The Tribunal made an error as to the Mr Singh’s nationality.

4. The applicants appeared in person and did not require the assistance of an interpreter.  The first applicant, Mr Singh, made the majority of the submissions on behalf of both himself and the second applicant, his wife, Ms Kaur.  Ms Kaur made some brief submissions after having heard submissions from the Minister.

5. The first applicant submitted a written outline on the day of the hearing.  He also sought to tender some further documents relating to the completion of certain courses.  These were received subject to relevance without objection from the first respondent.

Background

1. It is the first applicant, Mr Singh, who has been studying in Australia.  The second applicant’s visa application is dependent upon Mr Singh’s application as she is his wife and the mother of their child.  Mr Singh obtained a Masters Degree in Political Science in India in 2005.  He arrived in Australia in November 2007.  Having completed a Certificate in Written English in 2008, the first applicant then proceeded to study a Diploma in Community Welfare Work which he completed in August 2010.  He then studied a Certificate IV in Business from November 2010 to May 2011, followed by a Diploma in Management from May to November 2011.

2. His evidence was that he was pursuing these studies because it was his intention to open a nursing home business in India.  Having completed these courses, he then changed direction and completed a Certificate III in Horticulture in January 2013, and then completed an Advanced Diploma in Management between June 2013 and June 2014.  At the time of the Tribunal hearing, he was studying a Certificate IV in Business Administration, which had commenced on July 2014, and was scheduled to conclude in August 2015.  He then planned to study a Diploma of Business Administration and a Diploma of Marketing which it was claimed would finish in October 2017. 

3. The first applicant’s family are engaged in agriculture and dairy farms in India.  Having completed his Masters Degree in Political Science, the first applicant was apparently unable to find a job in his preferred field as a teacher, and so worked for a period of time in the family business before coming to Australia. 

Tribunal hearing

1. Prior to the Tribunal hearing, a Migration Agent representing the first applicant provided the Tribunal with a lengthy written submission dated 10 March 2015.[1]  The first applicant appeared before the Tribunal by telephone on 18 March, but it appears from the decision record, that he was not represented by the Migration Agent on that occasion.[2]  The first applicant gave evidence to the Tribunal as to the history of his studies and his reasons for having changed direction.  The Tribunal did not accept the explanations he provided to it.  It found his reasons for having changed course direction to be vague and confusing.[3] 

   [1]     Court Book (‘CB’) p 111.

   [2]     CB p 160.

   [3]     CB p 161.

2. The Tribunal was not convinced that the apparent difficulties with opening an aged care home in India, both from the perspective of money and legal requirements, was something that only occurred to the first applicant after he had completed his first Diploma of Management at the end of 2011.  The Tribunal also found his evidence as to the influence that his family had in his ultimate decision to change direction of his course of studies to be, “contradictory and vague”.[4]  It noted that his Migration Agent had stated in his written submission, that a significant factor influencing him to change career plan, was the attitude of his family, who apparently did not support his ambition to work in the community welfare services sector.  In contrast, the applicant told the Tribunal that his family had always supported this choice of career direction, and that the decision to change direction towards horticulture and a plan to start up a nursery in India, was his alone.[5]  His stated career path, at the time he appeared before the Tribunal, was to open a wholesale nursery in India, and he submitted that this would complement his family’s existing business in agriculture.

   [4]     CB p 162.

   [5]     CB p 162.

3. The Tribunal noted that the first applicant had already obtained a number of Diplomas in business and management, and found his evidence as to the need for further study in this area to be unconvincing.  It accepted that the proposed further study might have some relevance to his future business plan, but was not convinced that the studies he had already undertaken in this area did not sufficiently give him the skills he required to pursue a nursery business in India.

4. The Tribunal considered, and gave weight, to the fact that the first applicant had studied in Australia for over seven years without having obtained any qualification higher than an Advanced Diploma.  It noted that at the end of his proposed study, he would have been in Australia for 10 years and would still not have completed any qualification higher than an Advanced Diploma.  In considering this aspect of the first applicant’s history of study in Australia, it also took into account the disparity between his previous Masters level study and the types of courses he had enrolled in in this country.  It concluded that the first applicant was undertaking short and relatively inexpensive courses as a means of maintaining ongoing residence in this country.[6]

   [6]     CB p 162.

5. The Tribunal also regarded it as a significant factor that both the applicant’s wife and child lived with him in Australia, and it considered that this was a disincentive for him to ever return to India. 

6. The Tribunal acknowledged that the first applicant provided it with a “project report” for his planned nursery, and that he supported this with some financial documents, which showed land ownership and bank accounts in India.  However, it noted that the land was owned by the family, and the bank accounts appeared to be in the names of his mother, father and grandfather.  It concluded that it was not convinced by those materials that he had a strong financial incentive to return to India, notwithstanding the first applicant’s evidence that he stood to inherit his parent’s estate.[7]

   [7]     CB p 163.

7. The Tribunal identified that the relevant subclass for the student visa was subclass 572. The Tribunal was required to consider, and did consider, whether the first applicant met the time of decision criterion in cl.572.223 of the Migration Regulations 1994 (Cth) (‘the Regulations’). Pursuant to that clause, it was necessary that the Tribunal be satisfied that the first applicant was a genuine applicant for entry and stay in Australia as a student. It needed to be satisfied that he intended genuinely to stay in Australia temporarily having regard to his circumstances, immigration history, and any other relevant matters. The Tribunal was required to have regard to, and did have regard to, Direction No.53 Assessing the Genuine Temporary Entrant Criterion for Student Visa Application, made under s.499 of the Act.

8. As part of considering the first applicant’s circumstances, pursuant to Direction No.53, the Tribunal was required to have regard to the value of the proposed studies to the first applicant’s future.  It did so, and that consideration is reflected in the conclusion the Tribunal reached, to the effect that the first applicant was seeking to undertake further study in areas in which he had already taken courses, and its lack of satisfaction that such further study was required to enable him to carry out his plan to open a nursery in India.  The Tribunal was also entitled, pursuant to Direction No.53, to place weight on any circumstances of the first applicant indicating that the request for the student visa was intended to be a means of maintaining his residence in Australia. 

9. As the first applicant contended in his ground of application, the Tribunal did incorrectly state at [18][8] to [22][9] that he had studied in Pakistan.  This appears to be a typographical error, as elsewhere in the decision record, the Tribunal correctly states, on many occasions, that the first applicant, and the applicant’s family, came from India and were based there.  I note with respect to this point that the first applicant accepted during the course of his oral submissions that this was probably a typing error.  His claim that the Tribunal had somehow mistakenly placed weight on the premise that he was a Pakistani national, was not seriously pursued by the applicants at this hearing.

   [8]     CB p 162.

   [9]     CB p 163.

10. Having considered the applicants’ circumstances, immigration history and other matters that it noted in the body of the decision record, the Tribunal was not satisfied that the first applicant intended genuinely to stay in Australia temporarily and for that reason, he did not meet cl.572.223(1)(a). It was for that reason inevitable that the second applicant also failed to meet the requirements for the visa.

Submissions

1. The first applicant made brief oral submissions before this Court.  He sought to rely on the written outline that he submitted on the day of the hearing before me.  The difficulty with the written outline is that it amounts to a restatement of his personal history and his motivation for wanting to undertake further studies.  In essence, the written outline amounts to a further submission on the merits of his case.  It is well established that I am not able to re-hear this matter on a merits basis and I am confined to a consideration of whether or not the Tribunal fell into jurisdictional error. 

2. The documents which the applicant sought to tender, which was received subject to relevance, were:

   a)Statement of Completion for a Certificate IV in Business Administration.  This document post-dates the Tribunal hearing;

   b)Certificate relating to that Course which was issued on 8 September 2015, after the Tribunal hearing;

   c)Letter of confirmation, which post-dates the Tribunal hearing, confirming that he is enrolled in a Diploma of Business Administration; and

   d)Student Academic Progress Report dated 9 February 2016. 

3. These documents were not before the Tribunal, and were in effect tendered in support of a merits argument. As such, I find that I am not able to have regard to them.[10]

   [10]    Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.

4. The first respondent submits that the length of time the first applicant had been studying in Australia, the change of direction in his studies, and his explanation for those matters, were all highly relevant for the Tribunal to consider given that it was required to be satisfied that he genuinely intended to stay in Australia only temporarily.  For that reason, it says that this aspect of the first applicant’s application for judicial review must fail.  I accept this submission.  It was clearly not, as Mr Singh has pleaded, an irrelevant consideration.

5. The first respondent also submits that the references to the first applicant having studied in Pakistan, can be explained as simple typographical errors, which whilst unfortunate, were not material to the conclusion ultimately reached by the Tribunal.[11]  It cannot be said to have affected the validity of the decision.  As I have noted earlier, the first applicant did not seriously submit otherwise.  I accept the submission of the first respondent that this aspect of the application for judicial review must fail.

   [11]    Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259 at [272]–[291].

6. With respect to the request to this Court for an opportunity to prove that he is a genuine student, as I explained to the applicant, it is not the role of this Court to re-visit and re-determine findings of fact made by the Tribunal.

7. Having considered the submissions of the first applicant and the decision record of the Tribunal, I am satisfied that the Tribunal considered and correctly applied the relevant law with respect to a Student Subclass 572 visa.

8. Having heard the submissions of the first respondent, the second applicant, Ms Kaur, submitted in effect that the Tribunal had made an error when considering the significance of the first applicant having his family residing with him in Australia.  Ms Kaur told the Court that their child was returned to India in January 2015.  This was before the date of the Tribunal hearing and would have been a relevant matter, had it been raised.  The first applicant told the Court that he did not tell the Tribunal that this had occurred because he was not asked.  He simply gave the Tribunal his son’s birth certificate.  The return of the son to India was not a matter mentioned in the written submission provided to the Tribunal by the Migration Agent in advance of the hearing.  Indeed, the application for review to the Migration Review Tribunal[12] indicated that the child, Agamdeep Singh born 5 April 2014, was an applicant to the merits review.  The Tribunal proceeded on the basis that Ms Kaur and Mst Singh were secondary applicants.  In all of the circumstances, I am not satisfied that it was an error for the Tribunal not to ask about the present whereabouts of the child, Agamdeep Singh, and that the failure to do so does not amount to jurisdictional error.

   [12]    CB p 84-85.

9. I am satisfied that the findings of the Tribunal, including the credibility findings, were open to it based on the evidence before it.  There was nothing unreasonable, illogical or irrational in the decision.  I find that the Tribunal did not commit jurisdictional error in making the findings that it did.  The arguments of the applicants in this matter simply take issue with the factual and credit findings of the Tribunal, with which they clearly disagree.  Such disagreement does not of itself enliven my jurisdiction.

10. Accordingly, I dismiss the applications for judicial review and make the orders found at the beginning of these reasons.

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

Date: 9 March 2016