Yadagiri v Minister for Immigration

[2016] FCCA 2279

FEDERAL CIRCUIT COURT OF AUSTRALIA

YADAGIRI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2279

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) – whether Tribunal predetermined applicant’s claims – whether the Tribunal acted unreasonably by not providing the applicant further time to obtain documents in relation to a criterion which the Tribunal concluded it was not necessary for it to consider – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s. 499

Migration Regulations 1994 (Cth), Schedule 2, cls.572.223, 572.223(1), 572.223(1)(a), 572.223(2)

Applicant: CHAKRADHAR KADARAM YADAGIRI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1626 of 2015

Judgment of: Judge Manousaridis

Hearing date: 26 August 2016

Delivered at: Sydney

Delivered on: 2 September 2016

REPRESENTATION

Applicant in person.

Solicitors for the Respondents:

Ms C Hillary of

DLA Piper

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1626 of 2015

CHAKRADHAR KADARAM YADAGIRI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) subclass 572 visa (Subclass 572 visa).

Background

1. The applicant is a national of India. He entered Australia in October 2008 on a student visa that was valid until 18 November 2010. The applicant was granted three subsequent student visas, the last of which ceased on 20 August 2014. On 19 August 2014 the applicant applied for the Subclass 572 visa in question but, on 19 February 2015, a delegate of the Minister refused the application because the applicant did not satisfy the requirements of cl.572.223(1) and (2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), being the genuine temporary entrant criteria and financial capacity criteria respectively. The applicant then applied to the Tribunal for review of the delegate’s decision.

Tribunal hearing

1. The issue the Tribunal considered it had to determine was whether the applicant met the criterion prescribed by cl.572.223 of Schedule 2 to the Regulations[1].

   [1] CB154, [18]

2. That sub clause, at the time of the Tribunal’s decision, provided:

   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 (2).

3. In determining whether the applicant satisfied cl.572.223 of Schedule 2 to the Regulations, the Tribunal considered it was required to have regard to Direction No. 53, “Assessing the genuine temporary entrant criterion for Student Visa applications”, made under s.499 of the Migration Act 1958 (Cth) (Act). The Tribunal noted “[t]his Direction requires 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.

4. The applicant appeared before the Tribunal at a hearing on 21 May 2015. When asked about his current circumstances, the applicant stated he had continued his studies but ceased studying five weeks before the hearing. The applicant said he did so because his education provider had asked him to pay further fees and he was not prepared to pay the fees because he was unsure whether he would be granted the subclass 572 visa.

5. Second, the Tribunal raised with the applicant issues previously raised by the delegate, including the applicant’s enrolling in relatively short term, unrelated and inexpensive courses which indicated he may be enrolling in such courses for the purpose of prolonging his stay in Australia. The applicant stated he wanted to completed his final course and then return to India and noted one of his education provider’s had closed on one occasion. The Tribunal noted this only accounted for a relatively short period of time.

6. Third, the Tribunal asked the applicant about the value of the applicant’s study to his future to which the applicant responded that he would like to finish his course in hospitality and set up his own hospitality business in India.

7. Fourth, the Tribunal asked the applicant what courses he had completed whilst in Australia (the applicant had enrolled in a Diploma of Hospitality Management, a Certificate IV in Hospitality (Commercial Cookery), a Certificate III in Business, a Certificate IV in Business Administration, an Advanced Diploma of Business, a Diploma of Business Administration, an Advanced Diploma of Tourism, and a Certificate I in English Communication Skills). The applicant said he had completed a Diploma of Business and an Advanced Diploma of Tourism. The Tribunal put to the applicant that he appeared to have very limited success with his studies considering the amount of time he has spent in Australia and asked why it should assume he would be successful in his current studies. The applicant stated he wanted to complete his studies and return to India.

8. Fifth, the Tribunal raised the issue of the applicant’s financial capacity with him. The applicant said he did not have further evidence at that time but could provide further evidence if given time. The Tribunal considered the request but decided not to provide the applicant with further time to provide the evidence on the basis that financial capacity was not going to be an issue before it.

Tribunal’s reasons

1. The Tribunal was not satisfied the applicant had a genuine intention of staying in Australia temporarily and gave the following reasons for so finding:

   a)the applicant’s history of enrolling in relatively short term, inexpensive, and unrelated courses which indicates the applicant is enrolling in courses in order to maintain residence in Australia;

   b)further study at the same level will not be of value to the applicant’s future;

   c)the Tribunal accepted the applicant’s evidence that one of his education providers closed but found it did not explain the applicant’s lack of progress throughout the remainder of his studies;

   d)the lack of evidence to support the applicant’s claim that it was only in 2014 that the applicant decided he wanted to work in hospitality;

   e)the applicant’s no longer studying and his poor study history whilst in Australia indicated a lack of interest in the study and considering the evidence before the Tribunal overall, it was not satisfied the applicant had enrolled in the current course of study because of a genuine desire to study and/or to add value to his future;

f)the applicant’s immigration history being of concern to the Tribunal, his initially entering Australia in 2008 as the holder of a student visa, his being granted four subsequent student visas, and his departure from Australia in that period on only one occasion indicates the applicant is using the student visa system to maintain residence in Australia;

g)the applicant’s employment and his decision to continue to work rather than study during the five weeks before the hearing indicates the applicant has ties to Australia which would present an incentive for the applicant to remain and furthermore, that the applicant is using the student visa system to circumvent the intentions of the migration program; and

h)the Tribunal’s not being satisfied the applicant’s submission that he would like to return to India to set up a hospitality business is a genuine one, in particular in light of the applicant not providing any further evidence to support the submission.

1. The Tribunal again referred to the student visa application being refused by the delegate on the basis of the financial capacity criterion, as well as the temporary entrant criterion, but it determined, having regard to its findings, that financial capacity was not an issue before it.

2. Ultimately, the Tribunal was not satisfied, based on the applicant’s circumstances, immigration history, and other matters it considered relevant, that the applicant intends genuinely to stay in Australia temporarily and, as a result, did not meet cl.572.223(1)(a) of Schedule 2 to the Regulations.

Grounds of review

1. The application filed with this Court contains two grounds of review. The first ground is:

   The Tribunal erred in law as the member was predisposed to refuse the review which exhibited certain amount of bias towards the applicant.

   Particulars

   The Tribunal in para 15 observed that “The Tribunal raised issues regarding the financial capacity. The applicant said he did not have further evidence but could provide further evidence if given time. The Tribunal considered this request but made a decision not to provide any further time on the basis that financial capacity was not going to be an issue in the decision”. It is submitted that having raised the issue of financial capacity of the applicant extensively at the time of hearing, when the applicant made a submission that he will provide further evidence of financial capacity if the hearing is adjourned, the honourable Member observed that it is not an issue. If the financial capacity is not an issue it is respectfully submitted that the Honourable Member did raise several questions on financial capacity and when I attempted to adduce further evidence I was informed that it was no longer an issue and this seems to exhibit certain amount of bias.

2. The essence of this ground is that, at least by the time the applicant requested further time to provide evidence of financial capacity, the Tribunal had formed the view that the applicant did not satisfy the genuine temporary entrant criterion. Two issues arise. Did the Tribunal, by the time the applicant requested further time to provide information on financial capacity, determine the applicant did not satisfy the genuine temporary entrant criterion? If so, does that manifest any predetermination by the Tribunal?

3. In my opinion, an inference is available to be drawn, and I do infer, that, by the time the Tribunal declined the applicant’s request for time to provide evidence of financial capacity, the Tribunal had decided the applicant did not satisfy the genuine temporary entrant criterion. The basis of that inference is that the genuine temporary entrant criterion and the financial capacity criterion were independent criteria. That is, the applicant had to satisfy both criteria to have been entitled to the Subclass 572 visa. That means the Tribunal’s deciding it did not need to make a decision on the financial capacity criterion necessarily implied the Tribunal had decided the genuine temporary entrant criterion had not been satisfied. Why? Had the Tribunal not decided the applicant did not satisfy the genuine temporary entrant criterion, the possibility remained that the Tribunal would decide the applicant did satisfy that criterion, in which case the Tribunal would have had to consider the financial capacity criterion.

4. Accepting, then, that, at the time it declined to give the applicant further time to provide evidence of financial capacity, the Tribunal had determined it was not satisfied the applicant met the genuine temporary entrant criterion, does that manifest predetermination by the Tribunal? That depends on when the Tribunal can be said to have formed the view the applicant had not satisfied the genuine temporary entrant criterion.

5. Ms Hillary, who appeared for the Minister, submitted that I should infer the Tribunal formed its view towards the end of the hearing, after the Tribunal completed its questioning of the applicant about the genuine temporary entrant criterion. There is no transcript of the hearing before the Tribunal. The Tribunal’s reasons for decision, however, suggest the Tribunal had formed its view at the time it had declined the applicant’s request for further time to provide evidence of financial capacity; and those reasons further suggest that this occurred towards the end of the hearing, after the Tribunal had considered the material and asked the applicant questions, and it considered the applicant’s evidence, in relation to the genuine temporary entrant criterion. The Tribunal’s reasons for decision summarise what occurred during the hearing,[2] and it is reasonable to infer that the Tribunal described what occurred in the order in which the matters it records occurred. It is at the end of its description of what occurred at the hearing that the Tribunal records the applicant’s requesting time to provide further information, and the Tribunal’s informing the applicant that financial capacity would not be an issue. At any rate, I cannot be satisfied on the material before me that the Tribunal formed its view about the genuine temporary entrant criterion at any time before the Tribunal considered the evidence before it that was relevant to that criterion.

   [2] CB152, [8]-[16]

6. The applicant, who appeared without legal representation, asked rhetorically: why did the Tribunal ask the applicant a question about financial capacity only to say, after the applicant had requested time to provide such evidence, that financial capacity was not going to be an issue in the decision? Does that not show bias by the Tribunal? In my opinion, there may be a simple answer to these questions. The Tribunal intended to ask the applicant questions about financial capacity; but when it sought to do so, the Tribunal was met with a request from the applicant for time to provide further evidence. It may reasonably be supposed the Tribunal, at that point, considered whether there would be utility in granting the applicant further time; the Tribunal then directed its mind to whether it was satisfied the applicant met the genuine temporary entrant criterion; and the Tribunal then finally decided it would not be satisfied the applicant met the genuine temporary entrant criterion. At any rate, it is not necessary that I make findings of fact to this effect. The onus is on the applicant to prove the Tribunal was biased. I do not infer the Tribunal was biased from the fact that the Tribunal asked the applicant a question about financial capacity but said, after the applicant had requested time to provide such evidence, that financial capacity was not going to be an issue in the decision.

7. Ground 1, therefore fails.

8. The second ground is:

   The Tribunal failed to provide adequate opportunity to the Applicant to adduce additional evidence regarding financial capacity and this resulted in miscarriage of justice and has vitiated the procedural fairness.

   Particulars

   The Tribunal failed to adjourn the hearing when the applicant requested for some more time to produce the documents relating to financial capacity. This has resulted in denial of opportunity and failure to adhere to the principles of natural justice resulting in miscarriage of justice.

9. The effect of this ground is that the Tribunal acted unreasonably in refusing to allow the applicant further time to provide evidence relevant to the finance capacity criterion. As I have already noted, the applicant had to satisfy both the financial capacity criterion and the genuine temporary entrant criterion before he could be granted the Subclass 572 visa. It was therefore open to the Tribunal to affirm the delegate’s decision if the Tribunal was satisfied the applicant did not meet either criteria. In those circumstances, having concluded the applicant did not meet the genuine temporary entrant criterion, it was not necessary for the Tribunal to consider whether the applicant had satisfied the financial capacity criterion. That, in turn, means the Tribunal was entitled not to give the applicant further time to provide evidence relevant to the financial capacity criterion. The Tribunal, therefore, did not act unreasonably, or otherwise make any jurisdictional error, by not providing the applicant further time to provide information in relation to the financial capacity criterion.

10. Ground 2, therefore, also fails.

Other matters

1. At the hearing, the applicant also submitted, in effect, that it was not open to the Tribunal to conclude the applicant did not meet the genuine temporary entrant criterion. I do not accept that submission. The Tribunal comprehensively considered all the matters it was required or which it was relevant for it to consider; and it was reasonably open to the Tribunal to conclude the applicant did not meet the genuine temporary entrant criterion for the reasons it gave.

2. The applicant also submitted that he was not aware that he was required to provide all relevant evidence before the Tribunal. Whether the applicant was, or was not so aware, is not relevant to whether or not the Tribunal made any jurisdictional error. I note, however, that if the applicant was unaware, it was unreasonable for him to have been unaware. In a letter dated 16 April 2015, in which the Tribunal invited the applicant to appear before it to give evidence and present arguments, the Tribunal requested the applicant provide the information referred to in the letter. That included “[d]ocuments that demonstrate you have sufficient funds, or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period”. That included documents that evidence “funds from an acceptable source”. A person who would have read that letter would have been under no doubt that he or she was required to provide to the Tribunal all documentary evidence on which he or she intended to rely.

Disposition

1. I propose to order that the application be dismissed. I will also order the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

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

Date: 2 September 2016