VIDIYALA v Minister for Home Affairs

[2018] FCCA 1540

FEDERAL CIRCUIT COURT OF AUSTRALIA

VIDIYALA v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1540

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – whether the Tribunal erred in failing to consider cl 500.212(c) of the Regulations – whether the Tribunal failed to consider alleged error in the delegate’s decision – whether the Tribunal’s decision was based on inconsistencies – no jurisdictional error made out – application dismissed.

Legislation:

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

Migration Regulations 1994 (Cth), rr.500.211, 500.212

Applicant: PRADEEP VIDIYALA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 366 of 2018

Judgment of: Judge Street

Hearing date: 13 June 2018

Date of Last Submission: 13 June 2018

Delivered at: Sydney

Delivered on: 13 June 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms M Butler
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 366 of 2018

PRADEEP VIDIYALA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 January 2018 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant who is a citizen of India first entered Australia on 26 July 2014. The applicant applied for a Student visa on 29 August 2016. On 8 November 2018, the delegate found the applicant failed to meet the criteria for the grant of a Student (Temporary) (Class TU) visa.

The Tribunal

1. On 22 November 2016, the applicant lodged an application for review to the Tribunal. The applicant was invited to attend a hearing by letter dated 19 December 2017. On 30 January 2018, the applicant appeared on that date together with his migration representative to give evidence and present arguments.

2. The Tribunal correctly identified that under cl 500.211 of the Migration Regulations 1994 (Cth) (“the Regulations”) at the time of decision, the applicant was required to be enrolled in a course of study in accordance with c 500.211(a) of the Regulations. The Tribunal noted that this is not a case where the applicant claimed to meet any alternative criteria under cl 500.211 of the Regulations.

3. Clause 500.212 of the Regulations provides relevantly as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)  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 intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)  the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)  the applicant's stated intention to comply with any conditions to which the visa may be subject; and

   (c)  of any other relevant matter.

4. The Tribunal referred to taking into account the direction made pursuant to s 499 of the Act when considering whether the applicant met cl 500.212(a) of the Regulations. The Tribunal referred to the applicant arriving in Australia on 26 July 2014 and his explanation for difficulties in relation to why he did not complete the MBA and the fact that the applicant has not made any academic progress since arriving in Australia in 2014.

5. The Tribunal referred to the applicant having enrolled in a Diploma of Management in July 2015, but did not finish the course because of a failure to commence the first term due to financial problems in 2016. The Tribunal referred to the applicant not studying between November 2015 to July 2016 and took into account the applicant’s explanation for the eight month gap being depression due to financial difficulties.

6. The Tribunal also took into account a current course of enrolment indicating the applicant is intending to study an Advanced Diploma of Business from January 2018 to January 2020. The Tribunal took into account the applicant’s explanation for pursuing that course being less expensive than the Master’s degree. The Tribunal found that this did not indicate that the applicant is a genuine temporary entrant as he is extending his time onshore to study a course that the Tribunal cannot see will add much value to the applicant’s future employment prospects.

7. The Tribunal placed significant weight against the applicant’s lack of academic progress in more than three and a half years, including a significant eight month gap where he was not studying at all. The Tribunal took into account that for the three and a half years the applicant has been in Australia he has not yet finished a course. It was in these circumstances that the Tribunal was not satisfied the applicant intends genuinely to stay in Australia temporarily. The Tribunal found that the applicant is continuing to enrol in other courses in Australia for the primary purpose of maintaining residence.

8. The Tribunal found the applicant did not meet the criteria under cl 500.212(a) of the Regulations and affirmed the decision under review.

Before this Court

1. On 8 March 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation given by the Court.

3. From the bar table the applicant indicated that he needed more time to pursue his courses. The Court sought to clarify with the applicant whether he was seeking an adjournment of the hearing today and the applicant indicated that he was not and was happy for the hearing to proceed. The applicant indicated that he wanted to be able to complete his course and that is why he needed more time. The applicant’s submissions were in substance inviting the Court to determine the application on compassionate or discretionary grounds. This Court does not have power to determine the matter on compassionate or discretionary grounds. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds of the application are as follows:

   1. That the Tribunal made jurisdictional error as it failed to consider clause 500.212 (c) Migration Regulations 1994

   Particulars

   a. The Tribunal erred in not considering cl 500.212 (c)

   b. The Tribunal erred in not referring and applying clause 500.212 (c) of any other relevant matter when clearly the applicant's circumstances and facts demands that the said clause be invoked in his favour.

   c. The Tribunal erred in failing to consider that the delegate misconstrued clause 500.212(a) in finding that the appellant was not a genuine temporary entrant (GTE)

   2. The Tribunal made jurisdictional error in failing to consider that the delegate made a decision on the basis of no evidence applying the case QAAA of 2004 v Minister for Immigration and Multicultural & Indigenous Affairs [2007] FCA 1918.

   3. That the Tribunal erred in failing to consider that the delegate was imparting its own observation and knowledge without any basis in law and fact.

   Particulars

   a. The delegate at page 5 of the decision stated “... the Tribunal is not confident based on his past performance, that he will complete this course either ...”

   b. At the same page “Less than half of the time he will have spent onshore will have resulted in his gaining an academic qualification and at a lower academic level than his qualifications gained in India”

   4. The Tribunal failed to consider applying the case of Aulakh & Ors v Minister for Immigration & Anor (2017) FCCA 544 that inconsistencies in the evidence of the applicant before it does not go to the core of the applicants claim for the student visa.

Ground 1

1. In relation to ground 1, the Tribunal correctly identified the requirements of cl of 500.212 of the Regulations and, relevantly in that regard, cumulative requirements. As the applicant did not meet cl 500.212(a) of the Regulations on the Tribunal’s finding, there was no need for the Tribunal to consider cl 500.212(c) of the Regulations. Further, there is no basis to support the proposition that the Tribunal misconstrued cl 500.212(a) of the Regulations. The Tribunal’s reasons reflect taking into account the applicant’s evidence and making a finding that was open on the material before the Tribunal for the reasons given by the Tribunal. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, this Court does not have power to review the delegate’s decision and whether the delegate made any error does not give rise to error by the Tribunal. No jurisdictional error is identified by ground 2.

Ground 3

1. In relation to ground 3, this again addresses alleged error by the delegate and is not capable of making out relevant legal error by the Tribunal. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, this is not a case where the Tribunal determined the matter based on inconsistencies, rather the Tribunal took into account the length of time the applicant had been in Australia and his failure to pursue further academic study in that regard in determining whether the applicant met the criteria under cl 500.212(a) of the Regulations. Accordingly, there is no substance in the alleged error identified in ground 4. No jurisdictional error is made out by ground 4.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  7 August 2018