Singh v Minister for Immigration

[2019] FCCA 976

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 976

Catchwords:
MIGRATION – Application for student visa – inconsistencies in evidence – study undertaken found not be likely to be of assistance upon return to country of origin – first applicant first arrived in Australia in 2008 – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), r.572.223

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

Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 12
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

First Applicant: SHARANBEER SINGH

Second Applicant: NAVJOT KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1007 of 2017

Judgment of: Judge Egan

Hearing date: 8 April 2019

Date of Last Submission: 8 April 2019

Delivered at: Brisbane

Delivered on: 8 April 2019

REPRESENTATION

Applicants: In-Person

Solicitors for Respondent: Ms K. Hooper of Minter Ellison

IT IS ORDERED THAT:

1. The application for review filed on 9 October 2017 be dismissed.

2. The first and second applicants pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1007 of 2017

SHARANBEER SINGH

First Applicant

NAVJOT KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 11 March 2016, the first applicant (FA) applied for a student visa.  The FA’s wife, who is the second applicant to these proceedings, was included in the application as a member of the applicant’s family unit.

2. On 19 July 2016, a delegate of the minister refused to grant to the FA the student visa. The delegate found that that the applicant did not satisfy the relevant criteria as set out in paragraph 572.223(1)(a) of the Migration Regulations 1994 (Cth) (‘the Regulations’). Paragraph 572.223(1)(a) of the Regulations provided 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 (1A) or (2).”

3. On 1 August 2016, FA sought review of the delegate’s decision. On 15 May 2017, FA provided further supporting material to the Tribunal.  On 17 May 2017, the applicants appeared by telephone at a hearing before the Tribunal, together with their registered migration agent.  On 12 September 2017, the Tribunal affirmed the delegate’s decision to refuse to grant FA the relevant student visa.

4. On 9 October 2017, FA filed an application for review of the decision of the Tribunal, pursuant to the provisions of section 476 of the Migration Act 1958 (Cth) (‘the Act’). It was recorded in [2] of the Tribunal reasons that the applicant’s applied to the Department of Immigration for the visas on 11 March 2016. It was noted that the FA proposed to undertake study in a Diploma of Business, and an Advanced Diploma of Business commencing on 1 February 2016, and concluding on 2 April 2017.

5. At [3] of the Tribunal reasons, the Tribunal recorded that in his submission the FA set out the following:

   “i) He chose to study in Australia due to the higher education standard and strong international reputation.

   ii) He came from a family with a background in business as his family ran a manufacturing and trading business for clothing. In the long term he would like to have his own business. He hoped with his study overseas to gain the skills and knowledge to complement his existing family business and work to expand it, He has a responsibility to grow this business.

   iii) His courses will provide him with the skills required for managing his own business in a professional way.

   iv) The applicant's parents and brother were in India as was his established family business. He did not have any property in India however as he was one of two sons he would inherit half of his parent's property. He calls his parents on a daily basis and they are supporting him and the secondary applicant financially in Australia.”

6. At [5] of its reasons, the Tribunal found that the FA did not satisfy the requirements of clause 572.223(1)(a) of schedule 2 to the regulations, because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.  The delegate relevantly found as follows:

   “i) The applicant had provided only a very general statement as to how his studies would benefit his future career prospects. He had not provided evidence of specific business opportunities or job offers. Furthermore the applicant did not adequately explain the relevance of his course of study to his academic or employment background.

   ii) As studying the enrolled courses required significant financial cost as well as the inconvenience of international travel, the applicant had not provided convincing reasons to the delegate for study in Australia.

   iii) The applicant had arrived in Australia on 18 July 2008. At the time of the delegate's decision he had been onshore for 1480 days and offshore for 347 days. The delegate was concerned that the applicant's intention to live in Australia was motivated by factors other than study.

   iv) There was a lack of continuity in the applicant's fields of study suggesting that the substantive object of his study was to maintain residence in Australia.”

7. At [8]-[14] of the reasons of the Tribunal, the relevant study and travel history of the FA was explored in detail.  At [12] of its reasons, the Tribunal, when considering the applicant’s family’s business, noted that the applicant claimed that his father was the sole owner of the business, and that his  brother had decided to study medicine, such that it would require him to take over the business.

8. It was noted that the business sold garments such as scarves and saris.  It was recorded that the business purchased the textiles and manufactured the garments.  The applicant claimed that his father wished to retire and that he had plans to market and expand the business.  The Tribunal repeated its concerns as to the relevance of the applicant’s proposed Certificate IV in Commercial Cookery, for which he was enrolled in Australia, in circumstances where such business was unrelated to the nature of the business proposed to be undertaken in the future by him.

9. The Tribunal concluded that the decision of the delegate should be affirmed. At [17] of its reasons, the Tribunal had regard to the contents of ministerial direction number 53, namely, “Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications” made pursuant to the provisions of section 499 of the Act. It was noted that that direction required the Tribunal to have regard to a number of specified factors in relation to:

   ·“the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;

   ·the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.”

10. At [19] of its reasons, the Tribunal found that the applicant did not satisfy the genuine temporary entrant criterion.  The Tribunal referred to a number of factors which led it to make such findings.  At [20] of its reasons, the Tribunal accepted that the FA had close and strong family ties in India, including a brother and parents.  It was accepted also by the Tribunal that the FA may have an opportunity to work with his father in business.

11. It was conceded by the Tribunal that the FA did have circumstances in India that were indicative of a person who was only a temporary entrant to Australia who wished to return to the country of origin.  At [21] of its reasons, the Tribunal accepted that the applicant was, at the time of the handing down of the decision, enrolled in a Certificate IV course in commercial cookery.  It was recorded that the applicant had successfully completed a course that was the subject of the original visa application, namely, a Diploma of Business.

12. It was also recorded that the applicant had completed other courses since his arrival in Australia, namely, a Certificate III in Commercial Cookery, a Diploma of Hospitality, an Advanced Diploma of Hospitality, a Diploma of Management and an Advanced Diploma of Management.  At [22] of its reasons, it was noted by the Tribunal that the applicant has resided in Australia since 18 July 2008, which was a period of some nine years up to the time of the decision.

13. It was noted that such was a long period of time for someone to have remained in Australia on a temporary basis alone.  At [23] of its reasons, the Tribunal noted that since arriving in Australia in 2009, the applicant had only completed courses at the vocation level, such courses having been of short duration and inexpensive.  It was also recorded that it was of concern to the Tribunal that having completed two advanced diplomas, the applicant was returning to study at Certificate IV level.

14. The Tribunal found that, on the applicant’s own evidence, the applicant was not going to work in the hospitality industry, nor that he was planning a career in commercial cooking.  The Tribunal was unable to ascertain the benefit to the applicant of a cooking qualification, given that he did not plan to work as a cook or otherwise in the hospitality industry, and further, in the light of his already holding a diploma and advanced diploma of hospitality.

15. The Tribunal did not accept that the applicant had provided credible evidence as to why, despite having undertaken the Diploma of Business and Advanced Diploma of Business, he had expended further money to undertake a Certificate IV in Commercial Cookery.

16. At [24] of its reasons, the Tribunal noted that a curriculum vitae provided to the delegate by the applicant did not make any reference to the FA having returned to India over the years to assist his father in his business.  The applicant’s claim that he had forgotten to mention that was considered unsatisfactory.  It caused the Tribunal to doubt whether the applicant was genuinely involved with the business at all.

17. At [25] of its reasons, it was noted that the FA had connections in Australia in addition to his wife.  The applicant and his wife had continued to reside in the same share house for about the last eight years with other friends from India.  At [27] of its reasons, the Tribunal found that the FA was not a genuine applicant for temporary entry and stay as a student.  Having considered all of the applicant’s circumstances, the applicant’s immigration history and other matters required to be considered by it, the Tribunal found that it was not satisfied that the applicant intended to genuinely stay in Australia on a temporary basis only.

18. The second applicant’s application for a visa failed because of the failure of the FA to satisfy the relevant criteria.  The grounds of the application for review are as follows:

    “1. The Department of Immigration and Border Protection and Migration & Refugee Division erred in determining on the basis that applicants (Mr Sharanbeer Singh and Mrs Navjot Kaur) didn’t satisfy requirement of cl572.22 of Schedule 2 to the Regulations for study and stay in Australia

    2. That the Department of immigration and tribunal erred in not taking into account that Mr Sharanbeer Singh and Mrs Navjot Kaur at all time substantially complied with conditions of their previous student visa subclass 572. Applicant has been a genuine student since her arrival to Australia. She never had any gap in her study while she was holding study rights in Australia.

    3. The DIBP and Tribunal failed to give a genuine opportunity t provide suitable documents by the applicants. DIBP and MRD failed to have regard to applicant’s circumstances and failed to check whether there was no compliance from applicants while holding previous student visas.

    4. According to AAT decision applicant does not meet cl. 572.223(1)(a) applicant has been genuine student since his initial arrival.

    5. DIBP and MRD were absent of any consideration with respect to applicant circumstances in accordance to the requirement. When exercising its jurisdiction both DIBP and MRD erred in making finding that were in direct conflict without explanation of the reason being provided.

    6. MRD was failed to provide the instructions and direction to provide the further documents from the Applicant. There has been negligence to access the circumstances of the applicant as he’s family member wasn’t well.

    7. Both DIBP and MRD failed to judge whether there was any non-compliance from applicants when holding previous visa. They were unable to determine the compliance for previous visa.

    8. The applicant seeks to be eligible for the grant of a subclass 572 student visa has been a genuine student.

    9. All facts and information provided are true and correct to best of applicant’s knowledge at the time of application.”

19. The grounds as set out in paragraphs 1, 2, 4, 5, 7 and 8 seek an impermissible merits review by this court.  The court is not entitled to do that, nor does it have jurisdiction to do that.  There is no merit to those grounds.  As to grounds 2, 3 and 7 of the application for review, the Tribunal correctly identified the matters which it had to direct its attention to for the purpose of determining whether the FA met the relevant criteria or not.

20. The Tribunal was entitled to form the view that the nature of the study undertaken by the applicant was not indicative of a person who only wished to stay temporarily in Australia.  There is no validity to the assertion that the Tribunal did not appropriately address all of the relevant issues before it in relation to relevant matters going to the satisfaction of the relevant criteria.  To the extent that reference was made to compliance with the provisions of a “previous visa”, such consideration was irrelevant to the matters which were properly to have been considered by the Tribunal.

21. Further, grounds 3 and 6 of the application for review lack any particularity so as to allow a consideration of what the FA’s contentions were in that regard.  The FA was given the opportunity to put his case fully before the Tribunal, and was at no time denied the opportunity of doing so.

22. It cannot be said that during the course of its consideration of the issues before it, the Tribunal failed to make an obvious inquiry about a critical fact. [1]

    [1]        See Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 12 at [25].

23. Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as the Tribunal.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [30], [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

24. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76], where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

25. No jurisdictional error has been established on the part of the Tribunal by the applicant.

26. The application for review is without merit and is dismissed.

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

Associate: 

Date:  17 April 2019