SINGH v Minister for Immigration

[2015] FCCA 2442

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2442

Catchwords:
MIGRATION – Application for judicial review – whether applicant is a genuine temporary entrant in application for Student (Temporary) (Class TU) visa – dismissed.

Legislation:

Migration Act 1958 (Cth), s.499

Migration Regulations 1994 (Cth), cls.572.223, 572.223(1), 572.223(1)(a)

Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: GAGANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1953 of 2014

Judgment of: Judge McGuire

Hearing date: 31 August 2015

Date of Last Submission: 31 August 2015

Delivered at: Melbourne

Delivered on: 24 September 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Ms Briffa

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. Leave be granted to amend the name of the second respondent to ‘Administrative Appeals Tribunal’.

2. The application for judicial review be dismissed.

3. The applicant pay the costs of the first respondent fixed in the sum of $5000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1953 of 2014

GAGANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction:

1. This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made 1 September 2014 affirming a determination of the Minister’s Delegate to refuse the applicant a Student (Temporary)(Class TU) visa (“the Visa”).

2. The applicant appears in person.  He does not have an interpreter and I am satisfied that there is no requirement for an interpreter. 

3. The applicant provided no written submissions pursuant to the orders and directions of the Registrar made 17 December 2014. 

4. When the matter was called on, the applicant made an oral application for an adjournment. That application was refused and is subject to separate reasons.

5. The application offers only one ground of complaint being:

   Tribunal failed to consider the other sub-classes of visas in this class of visa.

Background:

1. The applicant is from India. He arrived in Australia on 9 July 2009 holding a Subclass 572 visa valid until 27 July 2011.

2. On 29 August 2011 the applicant was granted a further Subclass 572 visa valid until 15 March 2013.

3. On 4 March 2013 the applicant applied for the relevant visa. His application was supported by a letter of offer to study an Advanced Diploma of Business between 11 March 2013 and 11 March 2014.

4. On 1 May 2013 the Minister’s delegate refused the grant of the visa, not being satisfied that the applicant met the genuine temporary entrant requirement set out in cl.572.223(1)(a) of the Migration Regulations 1994 (“the Regulations”).

5. On 13 May 2013 the applicant applied to the Tribunal for a review of the Delegate’s determination.

6. On 24 June 2014 the Tribunal invited the applicant to attend the hearing listed for 30 July 2014. That invitation was accompanied by a copy of Direction No.53 in respect of the criteria for student visa applications. Specifically, the applicant was invited to provide a statement addressing the issue of whether he was a genuine temporary entrant.

7. On 29 July 2014 the applicant’s authorised representative provided materials to the Tribunal including material relevant to the applicant’s genuine temporary entrant status.

8. The applicant and his representative attended the hearing on 30 July 2014.  On that day, the applicant was granted further time to provide medical evidence in respect of an apparent gap in his previous studies.

9. On 20 August 2014 the applicant’s representative provided post-hearing submissions and further material to the Tribunal.  That material included that the applicant had completed an Advanced Diploma of Business in March 2014 and had enrolled in an education package including Certificates III and IV in Commercial Cookery and a Diploma of Hospitality due to be completed in April 2016.  The post-hearing materials also included a report from a psychologist as to the applicant’s mental state in 2012.

10. On 1 September 2014, the Tribunal affirmed the decision to refuse the grant of the visa.

11. The applicant was invited to make oral submissions in support of his application before this Court.  He declined the invitation.

The Tribunal’s Decision:

1. The Tribunal’s reasons disclosed that it considered and gave weight to the post-hearing psychological evidence in respect of the applicant that he had depression and anxiety from his father’s ill health which “interrupted” his studies. It is clear, therefore, that no adverse inference was drawn or attributed to the applicant’s gap in his studies.[1] 

   [1] Tribunal’s Reasons, 1 September 2014 at [31].

2. At [33] of the Tribunal’s reasons the Tribunal states:

   I am not, however, persuaded as to the applicant’s given reasons for now pursuing a package of courses in the cookery/hospitality stream. He displayed to me no particular passion for the industry, simply stating that he is interested in cooking. He states that it is his goal to open a restaurant in one of the shops that his mother owns in their home town.  However, he was unable to give me any detail as to the type of restaurant or how he would successfully competitively operate a restaurant in such a large market, other than to say his town is a smaller town. I note that his prior employment in India is in the garment industry. This is not consistent with his now stated goals nor his prior studies.

3. Further, at [34] the Tribunal noted:

   Further, the applicant stated that he wishes to apply for permanent residency as there is unemployment in India and no one to support him.  Whilst expressing such sentiments does not cause me automatically to regard the applicant as not intending to stay temporarily in Australia as a student, it is a factor which I have regard to in weighing up the applicant’s circumstances as a whole.  In particular, in this case I find that his expressed desire and reasons therefor [sic] run contrary to his stated need to return to India to look after his mother and support his family and his desire to operate a restaurant there. This is a significant factor which I take to be adverse to the applicant as it suggests that his ties to India and [sic] not, in fact, as strong as he has otherwise stated.

4. At [35] the Tribunal says:

   Another factor adverse to the applicant in my assessment is that he stated to me that he would be better off in Australia than if he returned to India.  In my opinion, this is a strong incentive for the applicant to remain in Australia.

5. In assessing the application the Tribunal found that the applicant was seeking to use the student visa program as a means of maintaining ongoing residence in Australia.[2] 

   [2] Tribunal’s Reasons, 1 September 2014 at [36-37]

Application to this Court:

1. At the relevant time the criteria for a Subclass 572 visa included the following:

   572.223(1);  the Minister is satisfied that the applicant is a genuine applicant for entry and status 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 materials; and

   (b)     the applicant meets the requirements of sub-clause(2).

2. The Tribunal was also required to have regard to the direction, being one made under s.499 of the Migration Act 1958 (“the Act”).

3. The only ground in the complaint now before me is that the Tribunal failed to consider “other subclasses of visas in this class of visa”.

4. I find no merit in the applicant’s complaint. 

5. At [38] of its reasons, the Tribunal found:

   The tribunal has found the applicant does not meet an essential element of cl.572.223.  With the exception of Subclass 580, the other sub-classes within visa Class TU all contain an identical requirement.   For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these sub-classes.  In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass.  As the Tribunal has found that the applicant does not meet the criterion for the grant of a student visa, it must affirm the decision under review.

6. The Tribunal was the determiner of fact and credit.  It was clear that the Tribunal was aware that the applicant’s intention to apply for permanent residency did not “automatically” mean that he was not intending to stay as a temporary student. The findings are not necessarily contradictory.[3] 

   [3] Khanna and Ors v Minister for Immigration & Anor [2015] FCCA 1971

7. The Tribunal made the finding that the applicant’s expressed desire was inconsistent with his stated intentions to return to India. This was a finding that was open on the material to the Tribunal where it can attribute weight to inconsistencies in the evidence. Such a discretionary function of attributing weight is not a matter for review by this Court. [4] 

   [4] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [281-282]

8. I am satisfied that the Tribunal in its consideration applied the correct test as set out by Judge Manousaridis in Khanna & Ors v Minister for Immigration & Anor[5] as follows:

   The question that must be addressed, then, is this: does the fact that a person who applies for a Subclass 573 visa intends to reside permanently in Australia, if the person so qualifies, imply that that person does not intend genuinely to stay in Australia temporarily for the 573 visa period? The key to answering this question is to recognise that the fulfilment of such person’s intention to reside permanently in Australia is conditional; it is conditional on the person later applying for and being granted a permanent residence visa, or being granted a temporary visa which could lead to the person being granted a permanent residence visa.

   [5] Khanna and Ors, Above n3, at [27]

Conclusion

1. There being no merit to the ground of complaint made by the applicant, the application will be dismissed with an order for costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 24 September 2015