Yalavarthy v Minister for Home Affairs and Anor

[2019] FCCA 3810

FEDERAL CIRCUIT COURT OF AUSTRALIA

YALAVARTHY v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3810

Catchwords:

MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant: MAHENDRA YALAVARTHY

First Respondent:

Second Respondent:

MINISTER FOR HOME AFFAIRS

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 250 of 2019

Judgment of: Judge Vasta

Hearing date: 18 November 2019

Date of Last Submission: 18 November 2019

Delivered at: Brisbane

Delivered on: 18 November 2019

REPRESENTATION

Counsel for the Applicant: Mr Rebetzke

Solicitors for the Applicant: GTC Lawyers

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed on 11 March 2019 as amended on 31 May 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental of the application fixed in the sum of $5,000.00.

NOTATION:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 250 of 2019

MAHENDRA YALAVARTHY

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By oral decision on 8 February 2019 the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate not to grant the Applicant, Mahendra Yalavarthy, a student visa.  Those oral reasons were reduced to writing and certified on 5 March 2019.  On 11 March 2019, the Applicant filed an originating application in this Court asking this Court to review that decision.

2. The background to this decision regarding the Applicant is that he had applied for a student visa on 28 March 2017.  The delegate had refused to grant the application and had done so because, it would seem, the delegate was not satisfied as to financial matters with regard to the application.  When the matter was brought before the Tribunal, the Tribunal looked at the matter to see whether or not the Applicant was a genuine temporary entrant. 

3. The Applicant had studied in Australia and had attained two master’s degrees from the Holmes Institute.  One was a Master of Business Administration.  The other was a Master of Professional Accounting.  As has been pointed out, those course end dates would have taken the Applicant through to July of 2019, however, he had completed both courses by November 2018.

4. What the Applicant sought to do was to complete a Graduate Diploma of Management in Learning.  That course was to commence on 4 March 2019 and would see the Applicant remain in Australia until 28 February 2020. 

5. What piqued the attention of the Tribunal is that the Applicant had already completed two master’s degrees and was now wanting to complete a far lesser degree; that of a graduate diploma.  The Tribunal queried why he would need to do this.  The Applicant explained to the Tribunal that it was his intention upon returning home to open a career development centre business around the middle of 2020, and he would do this with his family members. 

6. The Tribunal queried with the Applicant why he would need to attain an additional degree to do this considering he had these two very high qualifications.  The Tribunal noted that it had concern that the Applicant was wanting to remain in Australia to complete a qualification that was at a lesser level than those he had already obtained, but the Applicant explained to the Tribunal that it was necessary for him to do this as his background in engineering would not prepare him to participate in a business that is focused on education.

7. The Tribunal then asked the Applicant to explain what stage of progress his plans were to open the training centre that he had talked about back home.  He said that his plans are still in the initial stages and the Tribunal noted that he provided very little detail about what the plans actually look like and if they were to be effected, or effectuated, to use the word the Tribunal used.

8. The Tribunal said that it did not accept that it was necessary for the Applicant to attain an additional qualification at a lesser level in order to benefit from his qualifications back home.  The Tribunal asked the Applicant what his circumstances were back home in terms of his family and economic circumstances. He told the Tribunal that his father passed away and that his maternal uncle looks after his family’s farms where his mother still resides.  He said that he had one sister that resides in the USA.

9. The Applicant told the Tribunal that he first arrived in Australia in February 2015 and has returned home once, in August 2016.  The Tribunal then considered the Applicant’s evidence, and in doing that, was not satisfied that the Applicant was a genuine temporary entrant and considered that his seeking to complete a graduate diploma is a mechanism by which he was using the student visa program in order to extend his stay in Australia. For those reasons, the Tribunal was not satisfied that the Applicant intended to genuinely stay in Australia temporarily.  Therefore, he did not meet cl.500.212(a), and so the decision was affirmed. 

10. On 31 May 2019 the Applicant filed an amended application.  The grounds, that are still alive, are these, and I will go to ground 2 first:

    2. The Tribunal misconstrued or misapplied the criteria in Regulation 500.212(a) by:

    a. failing to give genuine and proper consideration or at all to the Applicant’s immigration history as required by clause 500.212.(a)(ii);

    b. failing to give genuine and proper consideration or at all to other relevant matters as required by clause 500.212(a)(iv)…

11. Regulation 500.212 reads as follows:

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

    (a) the Applicant intends genuinely to say 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. 

12. The first complaint is that there was not proper consideration, or at all, given to the Applicant’s immigration history.  That seems, after the argument was given to me, to really be a misapprehension as to what constitutes the Applicant’s immigration history.  As was pointed out in the court book, the Applicant’s immigration history really is a history of what it is that the Applicant has experienced with regard to visas and to travel. 

13. At paragraph 12 of the reasons, the Tribunal noted that the Tribunal must also consider 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.  That is what is meant by immigration history. 

14. The immigration history is contained in the application.  It shows that the student visa that the Applicant had been on was the only visa that he had applied for and that he had no previous travel to any other country. It also shows that the Applicant had completed the courses that he had said that he would complete. 

15. What is of relevance, according to the Applicant, is that he had completed those degrees earlier.  It seems to me that that was a matter that had been considered by the Tribunal because of the fact that it noted that it needed to do so and the immigration history itself was somewhat uncontroversial. 

16. The second aspect of this ground is that when one looks at what is in cl.500.212(a)(iv), “any other relevant matter”, the Applicant contends that the matters in paragraph cl.500.212(b), that is, his past record of compliance with visa conditions and his stated intention that he would comply with any other conditions, are matters that should be considered in the any other relevant matter criteria. 

17. The Applicant points to what he says is an analogous situation with regards to s.473DD, where matters that the Immigration Assessment Authority assess as to whether there is legitimate new material to consider, oblige the IAA to look at whether there are (a) exceptional circumstances and (b) whether the material could have been before the delegate and whether the material was credible personal information which was not previously known, and had it been known, could have affected the consideration.

18. It has often been said that the matters in s.473DD “(b)” will be part of the material that is looked at in considering “(a)” as to whether there are exceptional circumstances.  The Applicant argues that there is an analogous situation here where the matters in cl.500.212(a)(iv) should also comprise the matters that in cl.500.212(b).

19. In my view, s.473DD is a section that has its own peculiar jurisprudence because of the way in which Part 7AA has been set up, and it is of very little assistance to be trying to look at analogous situations between that part of the Migration Act 1958 (Cth) (“the Act”) and this part of the Act.

20. Secondly, this is certainly a clause where it would have been very easy for the legislature to simply have added the materials in (b) into (a) if those considerations were deemed to be necessary.  But more importantly, one needs to have a look at what the matters in (a), (b) and (c) are all about. 

21. In (a), the question is whether the Applicant intends genuinely to say in Australia temporarily and in (b), the question is whether he intends to comply with any conditions subject to which the visa is granted. 

22. The matters in (a) really look at his circumstances and his immigration history because the query needs to be one where the Tribunal, or the Minister, needs to see whether the Applicant intends genuinely to stay in Australia.  The second aspect in (b) is a different question.  Whilst the history of the person’s compliance with any conditions of the visa may at times be something that is relevant, that would mostly be subsumed, one would think, if there had been a problem with the matter as in the Applicant’s circumstances itself. 

23. It is really a matter, it would seem to me, for the Minister, or the Tribunal, to decide themselves as to what are relevant matters, and whether or not a particular matter is relevant is a matter for the decision maker.  Whilst it is that the Applicant points to a number of matters that could be relevant matters, in the end what the Applicant is doing is descending into an impermissible merits review. 

24. Whilst I might think that something is relevant or the Applicant might think that something is relevant, it really matters not.  It is for the Tribunal, and the Tribunal alone, to decide what is relevant.  The fact that the record of compliance with the condition of the visa or his intention or any other aspect with regard to his history of the visas is not looked at by the Tribunal, that may be because the Tribunal does not see that it is relevant to the question of whether he intends genuinely to stay in Australia temporarily. 

25. For those reasons I do not find that that ground two illustrates any jurisdictional error and it, therefore, fails.

26. Ground one is set out as follows:

    1.Contrary to s 499 of the Migration Act 1958, the Tribunal erred in failing to comply with a written direction given by the Minister about the performance of the Tribunal’s functions or exercise of power to review the delegate’s decision, namely Direction No.69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications, by:

    (a) Failing to consider the value of the course he was enrolled in to his future as required under Direction 69 (and instead considering the more restrictive question whether it was necessary for the applicant to attain the qualification to which the course leads to benefit from his qualifications in his home country);

    (b) Failing to allow for reasonable changes to career or study pathways in a consideration of the value of the course to the applicant’s future,

    (c) Failing to give genuine and proper consideration, or at all, to the applicant’s immigration history, that is, his visa and travel history.

    (d) Failing to have regard to other relevant information provided by the Applicant or otherwise available to the tribunal…

27. To see whether there has been an adherence to s.499 one has to have a look at what s.499 states.  That section is headed Minister may give directions.  Subsection (1) says that:

    (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

    (a) the performance of those functions; or

    (b) the exercise of those powers.

    …

    (2A) A person or body must comply with a direction under subsection (1).

28. Having a look at Direction Number 69 there is a preamble to that which relevantly says:

    This direction provides guidance to decision makers on what factors require consideration when assessing criterion 500.212.  Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a student visa and the Applicant and the need to identify those Applicants who at the time of the decision do not genuinely intend to stay in Australia temporarily. 

29. Part 2 of the direction, headed Assessing the Genuine Temporary Entrant Criterion, says:

    1. Decision makers should not use the factors specified in this Direction as a checklist.  The listed factors are intended only to guide decision makers when considering the Applicant’s circumstances as a whole, in reaching a finding about whether the Applicant satisfies the genuine temporary entrant criterion.

30. The criticisms made, again, really fall into the category of impermissible merits review.  Again, it is a criticism of what it is that the Tribunal has done.  Whilst there is a bold statement that there has been a failure to consider a number of matters, it is clear that the Tribunal has actually considered these matters, though it is also clear that not every aspect of those matters has been mentioned in the decision.

31. The real issue that emerged during the course of argument really revolved around the conclusions, or what the Tribunal had said, in paragraphs 20, 21, 22, 23 and 24.  I have more or less summarised those paragraphs already. 

32. What the argument has really looked at here has been paragraph 12 of the direction.  That paragraph says this:

    (12) Decision makers should have regard to the following factors when considering the value of the course to the Applicant’s future:

    a. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the Applicant to obtain employment or improve employment prospects in their home country.  Decision makers should allow for reasonable changes to career or study pathways; and

    b. relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c. remuneration the Applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

33. What has been submitted here is that what the Tribunal has done was, rather than going through and looking at whether the course could be of assistance and therefore is relevant, came very quickly instead to the conclusion that the course was unnecessary, and in doing so has been far too narrow in its approach. 

34. Whilst that submission did have some appeal to start with, when I thought more about it, it seems to me that the Tribunal has done exactly what the Minister’s Direction has asked it to do.  The Tribunal has identified that the course, being a Graduate Diploma of Management in Learning, is something which is far less than a Master of Professional Accounting as well as a Master of Business Administration. 

35. The Applicant could not properly and satisfactorily explain what it is that he would do with this other educational diploma other than to talk about a training centre. There was very little detail, and from what the Tribunal has said in its reasons, the whole aspect of the training centre seemed very vague.

36. Where the idea of what it is that will actually happen is so inchoate, it is very difficult to see how it is that the degree itself is going to do any of those things that paragraph 12 looks at.  The question is, “Is that what the Tribunal has actually done?”

37. When the Tribunal says that it does not accept that it is necessary for the Applicant to attain an additional qualification at a lesser level in order to benefit from his qualifications back home, I am of the view that it is saying, in that statement, that the course would not assist the Applicant to improve his employment prospects and that the course is not, or has little, if no, relevance to what it is that the Applicant has done in the past.  In that respect, the Tribunal has actually complied with Direction 69.

38. With regard to the other aspects of this ground, as I say, all of the other matters really are an attempt to have another go at the facts. There was much criticism of the conclusion of the Tribunal that “this was not a reasonable change to career or study pathway in a consideration of the value of the course to the Applicant’s future”. According to the Tribunal it had looked at this matter and come to the view that the degree that the Applicant already had was sufficient to do what he said that he wanted to do. The immigration history had already been looked as part of (ii). All the relevant information that the Tribunal thought was relevant was considered, notwithstanding that none of the, or very few of the, matters that the Applicant now says are relevant were considered. Again, it is not for the Applicant or even this Court to decide what was relevant.  It was for the Tribunal to do so.

39. For those reasons, ground one does not establish any jurisdictional error. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  14 January 2020