Yerasani v Minister for Immigration

[2020] FCCA 2055

FEDERAL CIRCUIT COURT OF AUSTRALIA

YERASANI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2055

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine temporary entrant for study – judicial review application seeking merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360, 499

Migration Regulations 1994 (Cth)

Cases cited:

Kumar v Minister for Immigration [2020] FCAFC 16

Applicant: SANTHOSH REDDY YERASANI

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

SECOND RESPONDENT: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1827 of 2017

Judgment of: Judge Driver

Hearing date: 27 July 2020

Delivered at: Sydney

Delivered on: 27 July 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C. Saunders of Minter Ellison

ORDERS

1. The application filed on 13 June 2017 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1827 of 2017

SANTHOSH REDDY YERASANI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. The applicant, Mr Yerasani, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 17 May 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Yerasani a temporary student visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions, filed on 17 July 2020.

Factual background

1. Mr Yerasani is a citizen of India, who arrived in Australia on 9 February 2014 on a Student (Temporary) (Class TU) (Subclass 573) visa (subclass 573 visa) that was valid until 15 March 2016.[1]  Mr Yerasani had been granted that visa on the basis that he was to undertake an English course and a Master of Business Administration (MBA).[2]

   [1] Court Book (CB) 59

   [2] CB 59

2. On 14 March 2016, Mr Yerasani applied for a Student (Temporary) (Class TU) (Subclass 572) visa and provided a certificate of enrolment for a Diploma of Business and an Advanced Diploma of Business.[3]

   [3] CB 1–13

3. By letter dated 6 April 2016, an officer of the Minister’s Department requested further information from Mr Yerasani in relation to clause 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations)—the genuine temporary entrant criterion.[4]  That letter stated, inter alia, that consideration of his immigration and study history has revealed “unfavourable information which does not support” his application and set out extensive detail about Mr Yerasani's immigration and study history.  The delegate invited Mr Yerasani to comment on that information.

   [4] CB 18–24

4. The Minister’s Department received Mr Yerasani's response on 18 May 2016, which included a statement written by Mr Yerasani addressing the issues raised by the Minister’s Department letter and attached a number of supporting documents.[5]

   [5] CB 25–49

5. On 26 May 2016, the delegate refused to grant Mr Yerasani the visa, finding that he did not satisfy the genuine temporary entrant criterion.[6]

   [6] CB 57–63

6. Mr Yerasani subsequently applied to the Tribunal for review of the delegate's decision,[7] and appeared before it on 11 May 2017 to give evidence and to present arguments.[8]   Prior to the hearing, on 9 May 2017, the Tribunal received a submission from Mr Yerasani's representative and further supporting documents, including a confirmation of enrolment for a Diploma of Business (from 2 May to 10 July 2017), and offer of enrolment for a Bachelor of Business (from 28 August 2017 to 21 August 2020), and an interim transcript for the Diploma of Business.[9]

   [7] CB 64–66

   [8] CB 64–66

   [9] CB 96–114

7. The Tribunal affirmed the delegate's decision on 17 May 2017.[10]

   [10] CB 125–128

Tribunal decision

1. The Tribunal did not consider Mr Yerasani's study history of completing one five week English course and part of a Diploma of Business to be a reasonable record of attainment for a student whose primary purpose was to study and progress academically.[11]  The Tribunal was concerned that Mr Yerasani had breached two conditions of his previous Subclass 573 visa; and while he claimed that his mother's illness affected his ability to study during the seven month gap in his studies, he did not seek a deferral from his education provider or return to India to be with her.[12]

   [11] CB 128 at [14]

   [12] CB 128 at [14]

2. The Tribunal was not satisfied that if Mr Yerasani genuinely wished to complete the two remaining subjects in his Diploma course after his return from India in November he would have been unable to earn or borrow the money to pay his fees, especially as he claimed that his wife had property and business in India.[13]  Rather, the Tribunal was of the view that the reason he obtained a new certificate of enrolment for this course and an offer of enrolment in a Bachelor of Business in early May 2017 was for the purpose of the Tribunal hearing.[14]

   [13] CB 128 at [15]

   [14] CB 128 at [15]

3. While the Tribunal accepted that Mr Yerasani had family ties to India, including a wife and two young children, it was not satisfied that these provided a compelling incentive for him to return there, especially as he was seeking to undertake a Bachelor degree that would extend his stay in Australia for another three years.[15]  Moreover, the Tribunal noted that Mr Yerasani provided no evidence that he has a concrete career plan on his return and that he had told the Tribunal that he had worked in restaurants in Australia.[16]

   [15] CB 128 at [16]

   [16] CB 128 at [16]

4. For these reasons, and having considered Mr Yerasani's circumstances, immigration history, and other matters it considered relevant, the Tribunal was not satisfied that Mr Yerasani intended genuinely to stay in Australia temporarily.[17]  Accordingly, the Tribunal found that Mr Yerasani did not meet the genuine temporary entrant criterion.[18]

   [17] CB 128 at [17]

   [18] CB 128 at [17]

5. The Tribunal noted that the other student visa subclasses, with the exception of subclass 580, contained an identical requirement, and therefore it found that he did not meet the requirements of those other student visa subclasses.[19]  The Tribunal also found that there was no material before it to suggest that he met the prescribed criteria for a subclass 580 visa.[20]

   [19] CB 128 at [18]

   [20] CB 128 at [18]

The current proceedings

1. These proceedings began with a show cause application filed on 10 July 2017.  That application was defective, in that it contained no grounds of review.  That was rectified in the form of an amended application filed on 10 July 2017.  The grounds in that application are:   

   1. Reconsider my application and set aside the decision of DIBP and AAT member,   so that I complete my studies.

   2. I am a genuine student and my sole intention is to complete the MBA course that I have applied to.

2. The matter was initially docketed to Judge Barnes but was transferred to my docket at a callover on 11 March 2019.

3. Mr Yerasani relies upon his affidavit accompanying his original application, and an affidavit filed on 22 July 2020.  He also filed written submissions on 12 February 2019. 

4. Annexed to both affidavits were additional written submissions, which I treated as such.  Other documents attached to Mr Yerasani’s most recent affidavit I received subject to relevance.  It is apparent that Mr Yerasani has been active since the Tribunal decision in pursuing his studies and obtaining qualifications.  The documents attached to his most recent affidavit in particular are directed to proving that.  I also have before me, as evidence, the court book filed 18 July 2017. 

5. In oral submissions, Mr Yerasani emphasised the progress that he has made in recent years towards completing his desired qualifications.  He is currently enrolled in a Masters of Information Technology, which he anticipates completing on 19 February 2021.  He seeks the opportunity to complete that course, whereupon he intends to return to India.  Mr Yerasani’s progress since the Tribunal decision is, of course, not something that the Tribunal could have considered.  I explained that to Mr Yerasani several times.  It is something that the Minister could consider, if he was so minded.  That is beyond the scope of these proceedings.

6. The difficulty confronting Mr Yerasani is that the Court can only intervene if a jurisdictional error is established.  In the present case, no jurisdictional error in the decision of the Tribunal is apparent.  In that regard, I agree with the Minister’s submissions concerning the grounds of review. 

Consideration

1. The grounds of the application and Mr Yerasani's submissions do not identify any case of jurisdictional error. Instead, Mr Yerasani misunderstands the role of this Court which is unable to determine the merits of his visa application nor can it grant Mr Yerasani a visa. To the extent Mr Yerasani seeks to present evidence to the Court in respect of courses completed since the Tribunal decision, this evidence is irrelevant to the Court's task.

2. The Tribunal correctly identified the critical issue, being whether Mr Yerasani satisfied the genuine temporary entrant criterion, and the factors specified in Direction 53—Assessing the genuine temporary entrant criterion for student visa applications (Direction 53), made under s.499 of the Migration Act 1958 (Cth) (Migration Act). The Tribunal's consideration of Mr Yerasani's claims and evidence indicates that it identified the relevant factors set out in Direction 53, and considered those claims and evidence against those factors, namely:

   a)Mr Yerasani's study and immigration history; and

   b)Mr Yerasani's ties to India and career plans.

3. Noting that the Tribunal is not required to make a finding in respect of each factor in Direction 53 nor to express a conclusion that it has formed a view that a particular factor is not relevant[21], there were no claims or evidence before the Tribunal that it failed to consider or that engaged any other of the considerations contained in Direction 53.

   [21]See Kumar v Minister for Immigration [2020] FCAFC 16 at [96] per Derrington and Thawley JJ

4. Finally, the Tribunal complied with its statutory procedural fairness obligation, having invited Mr Yerasani to a hearing before it pursuant to s.360 of the Migration Act and where there was no information before the Tribunal which enlivened its obligations under s.359A(1) of the Migration Act.

5. I conclude that Mr Yerasani is unable to establish that the decision of the tribunal is affected by a jurisdictional error.  The decision is therefore a privative clause decision, and the application must be dismissed.

6. I will therefore order that the application filed on 13 June 2017 be dismissed.

7. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,600.  Mr Yerasani enquired about payment by instalments.  I will not require payment by any particular time. 

8. I will therefore order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 11 August 2020