Toura v Minister for Immigration

[2017] FCCA 1850

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOURA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1850

Catchwords:
MIGRATION – Student visa – no evidence before Tribunal that applicant completed any of the many courses of study he commenced since arriving in Australia as a temporary student in 2008 – no error by Tribunal – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.499(2A)

Migration Regulations 1994 (Cth), clause 572.223(1)(a)

Cases cited:

Ghimire v Minister for Immigration and Border Protection [2014] FCA 899

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: AMANDEEP SINGH TOURA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 973 of 2015

Judgment of: Judge Wilson

Hearing date: 24 July 2017

Date of Last Submission: 24 July 2017

Delivered at: Melbourne

Delivered on: 24 July 2017

REPRESENTATION

Applicant in person

Solicitors for the first respondent: Australian Government Solicitor

ORDERS

1. The application filed on 5 May 2015 is dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $6,700.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 973 of 2015

AMANDEEP SINGH TOURA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Introduction

1. The applicant has applied for judicial review of a decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 8 April 2015. There, the Tribunal affirmed a decision made by the Minister’s delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

Synopsis

1. For the reasons that follow, I detected no jurisdictional error in the reasoning of the Tribunal and in the orders it made. In my judgment this proceeding must be dismissed and the applicant must pay the Minister’s costs.

Short factual narration

1. One of the most striking issues about this case was the fact that the applicant, a citizen of India, has lived in Australia as a student, there being no evidence before the Tribunal that he completed any one of the many courses of study he commenced. The Tribunal was not satisfied that the applicant met clause 572.223(1)(a) of the Migration Regulations1994 (Cth). The Tribunal found the applicant was not a genuine temporary entrant for the purposes of study. In essence, the Tribunal had regard to the applicant’s lack of academic progress, his failure to complete a single qualification in six years, a study gap of eight months and a vague description of his proposed future studies.

2. Ministerial Direction 53 applied to the applicant’s visa application. While not having force of law of a checklist, the Tribunal was entitled to give any one or more matters in that Direction such weight as it chose.[1] It is readily apparent that the Tribunal gave consideration to the elements of Ministerial Direction 53. 

   [1] Ghimire v Minister for Immigration and Border Protection [2014] FCA 899.

3. Turning to the specific visa application, the applicant applied for the visa on 14 May 2014. During a hearing before the Tribunal

   
   

   the member asked the applicant about his long period in Australia.

   
   

   The applicant’s answers revealed that he –

   a)came to Australia in 2008 to study engineering;

   b)ceased that course in 2010;

   c)enrolled in a college that he said charged him fees for assignments; and

   d)enrolled in another course but the relevant provider cancelled the course and the applicant’s enrolment.

4. The applicant told the Tribunal, as he told me, that he was here in Australia to study. That was not borne out by his study history.

5. The Tribunal raised with him, to my way of thinking, an obvious matter, namely its concerns about his study history, his lack of progress and the want of clarity about his future plans. The Tribunal considered that the applicant did not intend, genuinely, to study in Australia temporarily and so he did not meet clause 572.223(1)(a) of the Migration Regulations.

Grounds of review

1. In his grounds of review to this Court the applicant stated the

   
   

   following (verbatim) –

   I came in Australia as an international student to study. I applied to the Department of Immigration for a student (Temporary) (Class TU) visa on 14 May 2014. My application was refused by the department on 9 September 2014 on the basis that I did not satisfied their requirement of this visa. I am not satisfied with the decision made by MRT on my application. I believe that I should get another chance to study here Therefore I want to appeal against the MRT decision in the federal Court.[2]

   [2] Application filed on 5 May 2015 at p.3.

2. None of that faintly hinted at jurisdictional error into which the Tribunal allegedly fell. The Tribunal made no such jurisdictional error.

   
   

   The Minister submitted that no error was shown and that, in any event, a merits review was not permitted. Of the latter point, the High Court of Australia’s decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[3] stands as undeniable authority.

   [3] (1996) 185 CLR 259.

Conclusion

1. The Tribunal correctly applied the applicant’s circumstances against Ministerial Direction 53 as s.499(2A) of the Migration Act1958 (Cth) required.[4]

   [4] See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248.

2. I was not persuaded that the Tribunal made any error. I am not willing to give the applicant what he says is another chance. He has had enough.

3. The applicant has failed in this application. He must pay the Minister’s costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Associate: 

Date:  7 August 2017