Trehan v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 109
•8 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Trehan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 109
File number(s): MLG 2465 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 8 February 2024 Catchwords: MIGRATION – Judicial review - Student visa – Whether the Tribunal failed to take into account relevant considerations as to the genuine temporary entrant criterion – Whether the Tribunal correctly applied the secondary criteria as to the applicants who were members of the family unit of the primary applicant – No error – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 359AA, 476, 499
Migration Regulations 1994 (Cth) cls. 500.212, 500.311
Cases cited: Kaur v Minister for Home Affairs [2019] FCA 2026
WZAVW v. Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 8 February 2024 Date of hearing: 8 February 2024 Place: Melbourne First and Second Applicants: In person Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2465 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SWEETY TREHAN
First Applicant
ANURAG TREHAN
Second Applicant
TANISH TREHAN
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
8 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The First and Second Applicants pay the First Respondent’s costs fixed in the sum of $5,600.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Revised from Transcript
JUDGE CHAMPION:
INTRODUCTION
The Applicants are citizens of India. Mrs Sweety Trehan (the First Applicant) sought a student visa and was the primary applicant. Mr Anurag Trehan (the Second Applicant), her husband, sought a visa as a member of her family unit. Mr Tanish Trehan (the Third Applicant), her son, aged 12 at the date of the Tribunal decision, now aged 18, also sought a visa as a member of the First Applicant’s family unit. By earlier orders of the Court, the First Applicant was appointed as a litigation guardian for the Third Applicant in this proceeding.
The Applicants set out 3 grounds of alleged jurisdictional error. Grounds 1–3 are closely interrelated. Ground 1 is that the Tribunal “failed to take account of a relevant consideration” and Ground 2 is that the Tribunal “ignored materials the decision-maker was required to look at” as to the genuine temporary entrant criterion set out in cl. 500.212(a) of Schedule 2 to the Migration Regulations 1994 (GTE Criterion). Ground 3 is that the Tribunal “ignored materials the decision-maker was required to look at” as to cl. 500.312 of Schedule 2 to the Regulations which governs the grant of a visa members of the family unit of the primary applicant for the student visa. The secondary applicants’ applications for the visa (the Second Applicant and the Third Applicant in this case) could not be granted in circumstances in which the primary visa applicant’s visa had been refused.
As a result, the foundational issue for decision before me is whether the Tribunal failed to take into account a relevant consideration or ignored material it was required to look at as to the GTE criterion. For the following reasons, there was no jurisdictional error.
Grounds 1 and 2: Did the Tribunal fail to take into account a relevant consideration or ignore materials it was required to look at as to the GTE Criterion?
The Tribunal, correctly in my view, set out in its reasons (CB108, [6]):
To satisfy clause 500.212, an applicant must be both a genuine student and a genuine temporary entrant. To be a genuine student, you must be engaged in and applying yourself to a meaningful program of study, progressing academically down an identifiable path. To be a genuine temporary entrant, your circumstances must indicate a genuine intention to remain in Australia temporarily.
The Tribunal observed that s. 499 of the Migration Act 1958 (Cth) imposed a statutory duty upon it to have regard to “Direction Number 69 – Assessing The Genuine Temporary Entrant Criterion For Student Visa And Student Guardian Visa Applications” when conducting its review (Direction No. 69; CB108, [7]). Direction 69 was in the court book at CB62–66. I interrupt myself to note, as I ought to have done earlier, that I admitted the court book into evidence as Ex-C1 in this matter. The Tribunal explained that Direction No. 69 was a guide and not a “checklist” (Direction No. 69, part 2, item1): see also, Kaur v Minister for Home Affairs [2019] FCA 2026, [30]–[31].
Taking Direction No. 69 as a guide, the Tribunal considered a series of relevant and legitimate considerations as to whether Mrs Trehan met the GTE Criterion.
The relevant considerations the Tribunal took into account included the following.
First, the First Applicant’s enrolment in a Diploma of Leadership and Management at the International College of Melbourne had been cancelled for unsatisfactory course progress because Mrs Trehan had stopped studying (CB109, [14]). The Tribunal correctly put this information to Mrs Trehan for comment in accordance with its obligations under section 359AA of the Act; namely, that the PRISM records show that her enrolment had been cancelled for unsatisfactory course progress (CB109, [14]).
Secondly, the First Applicant told the Tribunal that her son, the Third Applicant, was doing well in year 7 at school and she wanted him to finish (CB109, [15]). The Tribunal noted that, although she had come to Australia on a 3-month visitor visa, she had in fact, by this time, stayed for 19 or 20 months (CB110, [25]).
Thirdly, the First Applicant had done no research as to the course she would undertake before coming to Australia on a tourist visa (CB109, [16]–[17]).
Fourthly, despite having completed a Bachelor’s level degree in Delhi, the First Applicant decided to study at the lower vocational education and training level in Australia (CB109, [20]).
Fifthly, because the First Applicant’s stated intention was to return to India and resume working in her father’s business, the Tribunal observed “your proposed studies would provide little added value to the skills and knowledge that you have already gained.” (CB110, [21]).
Sixthly, the First Applicant had not, in fact, done any study for the last year (CB110, [24]).
Each of these matters provided a logical and rational foundation, having regard to the matters set out in Direction No. 69, for the Tribunal’s conclusion that it was “not satisfied you are a genuine student, who intends to stay temporarily in Australia” and therefore did not meet the GTE Criterion. It might be noted that the First Applicant’s answers to the Tribunal’s questions, as referred to in the Tribunal’s reasons, suggested that her son’s education was her primary motivation for being in Australia and not her own studies.
As to the proceeding before me, even though the Court made orders for the Applicants to file and serve an amended application with proper particulars of the grounds of the application and written submissions before the hearing, the Applicants did not file any documents in support of their claims other than their original application dated 17 August 2018.
As result, as to Ground 1 and 2, the Applicants have not provided any details or particulars of the “relevant consideration” (Ground 1), they say the Tribunal failed to take into account or the materials which were ignored but which the Tribunal was required to look at (Ground 2). A failure to particularise a ground of review may be a sufficient basis not to accept an allegation of error: WZAVW v. Minister for Immigration and Border Protection [2016] FCA 760, [35].
At the oral hearing before me this morning, the First Applicant, who made submissions on behalf of all the Applicants, did not identify any relevant considerations the Tribunal failed to take into account. In a human way, she understandably put submissions before me as to her family concerns about wanting to do the best she could by her son in terms of him remaining in Australia. In my view, that was not, however, a relevant consideration which the Tribunal had to take into account in accordance with c. 500.212(a) of the Regulations and failed to failed to take into account.
The Applicants have not proved that the Tribunal failed to take into account a relevant consideration or ignored material it was required to look at.
Grounds 1 and 2 have not been made out.
I accept the First Respondent’s submissions that to the extent that it is submitted as to Ground 1 that the delegate erred, the complaint relates to a “primary decision” and is outside the Court’s jurisdiction: see s. 476(2) of the Act.
Ground 3: Is there any error as to the Second and Third Applicants who are members of the First Applicant’s family unit?
In its reasons, the Tribunal did not expressly refer to the applications of the Second and Third Applicants, the secondary applicants.
The Tribunal was not satisfied that the primary applicant satisfied the GTE Criterion and the secondary Applicants’ applications depended on the success of the First Applicant’s application. That is, cl. 500.311 of Schedule 2 to the Regulations operates such that the secondary applicants’ applications for the Visa – that is, the applications of Mrs Trehan’s husband and son – could not be granted in circumstances in which the primary visa applicant’s application had been refused because she did not meet the GTE Criterion.
Ground 3 has not been made out.
DISPOSITION
I will dismiss the application.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 8 February 2024
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