VILLAMAYOR v Minister for Immigration

[2015] FCCA 2238

FEDERAL CIRCUIT COURT OF AUSTRALIA

VILLAMAYOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2238

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Student (Temporary) (Class TU) visa – whether the applicant satisfied the genuine temporary entrant criteria – whether Tribunal failed to take into account the applicant’s history as a student – no jurisdictional error – application dismissed.

Legislation:

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

Applicant: MARIBETH VILLAMAYOR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1307 of 2015

Judgment of: Judge Street

Hearing date: 18 August 2015

Date of Last Submission: 18 August 2015

Delivered at: Sydney

Delivered on: 18 August 2015

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person

Solicitors for the Respondents: Ms E Warner-Knight
Australian Government Solicitors

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The first and second applicants pay the first respondent’s costs fixed in the amount of $5500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1307 of 2015

MARIBETH VILLAMAYOR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is the application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal affirming a decision of the delegate not to grant the first applicant a Student (Temporary) (Class TU) visa. The grounds of the application are as follows:

   THE TRIBUNAL FAILED TO CONSIDER MY PERFORMANCES IN MY STUDIES IN DETERMING MY GENUINESS AS STUDENT. FROM MY FIRST COURSE UNTIL NOW, I HAVE BEEN STUDYING, ATTENDING MY CLASSES, PERFORMING WELL AND COMPLETED THE COURSES I ENROLLED. I HAVE BEEN COMPLYING WITH MY VISA CONDITIONS. MY INTENTION TO COMPLETE MY COURSE TO BE ABLE TO ASSIST MY SISTER IN HER TRAVEL BUSINESS IN MY COUNTRY, PHILIPPINES.

2. On 18 June 2015, the Court made orders fixing the matter for hearing and granted leave to file an amended application, further affidavit evidence and submissions.  The first applicant has filed a further affidavit but no amended application or written submissions.  The affidavit annexes material that was not before the Tribunal and cannot make out any jurisdictional error.  It is admitted subject to relevance.  I accept the objection on behalf of the first respondent that the material is not relevant and cannot make out any jurisdictional error.

3. The first applicant first arrived in Australia on 3 May 2008 as the holder of a student visa and on 1 June 2009 the applicant was granted a second student visa and on 29 April 2011 the applicant was granted a third student visa.  On 9 July 2012, the applicant was granted a fourth student visa which ceased on 12 November 2014.  It was the applicant’s further application on 11 November 2014 for a student visa that was refused by the delegate on 21 November 2014 because the applicant did not satisfy the requirements of cl.573.223(1)(a) of Sch.2 to the regulations as the applicant did not satisfy the genuine temporary entrant criteria.

4. The Tribunal identified the studies that the first applicant had undertaken in Australia and the first applicant’s evidence asserting that this would assist her gaining employment in the Philippines.  On 24 February 2015, the first applicant was sent an invitation to appear before the Tribunal on 31 March 2015, which the first applicant did, to give evidence and present arguments.  The Tribunal raised with the first applicant her immigration history, having entered Australia in May 2008 on a temporary student visa, and explored with the first applicant the courses she had undertaken and her current plans, as well as having a husband, being the second applicant, and a child, the third applicant, with her in Australia.

5. The Tribunal noted that there had been a gap in the timeline in relation to the first applicant pursuing her Advanced Diploma of Management and that the first applicant only received the certificate of enrolment after she received the invitation to a hearing letter.  The Tribunal identified the issue in the present case in para.25 as follows:

   25. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1)(a) relevantly states:

   (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) …

6. The Tribunal identified, pursuant to s.499, direction number 53, to which regard must be had by the Tribunal and relevantly, in para.27, the Tribunal found, taking into account the circumstances as a whole, that the applicant did not satisfy the genuine temporary entrant criteria. The Tribunal set out reasons in support of that finding. It cannot be said that that finding lacks an evident and intelligible justification. There was a logical basis on that material for that adverse finding. It was in those circumstances the Tribunal found:

   28. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.573.223(1)(a).

   29. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. With the exception of Subclass 580, the other subclasses 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 subclasses. 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 a criterion for the grant of a Student Visa, it must affirm the decision under review.

   30. In addition the Tribunal finds that the secondary visa applicants do not satisfy clause 573.322.

7. It was a matter for the Tribunal to determine whether or not the applicant met the criteria and the grounds raised by the applicant fail to disclose any jurisdictional error.  The adverse findings by the Tribunal were clearly open on the material before the Tribunal and there is no substance in the assertion that the Tribunal failed to take into account the applicant’s study history as a student.  It is also clear that the Tribunal took into account the applicant’s alleged intention to assist her sister in her business in the applicant’s country of citizenship, being the Philippines.

8. It was open to the Tribunal to find inconsistency in that regard, logically, between the desire to help her sister and the further three years that she would spend pursuing education here in Australia, which was one of the first dot points identified by the Tribunal in support of its adverse finding.  Nothing was said by the applicant in support of the application or in answer to the first respondent’s written submissions as to why there was no jurisdictional error.  The application fails to identify any jurisdictional error.  The application is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 20 August 2015