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Patel v Minister for Immigration & Anor [2018] FCCA 862 (12 February 2018)
Last Updated: 12 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
PATEL v MINISTER FOR
IMMIGRATION & ANOR
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Catchwords: MIGRATION – Judicial review
– student visa – no jurisdictional error established.
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VIMALKUMAR AKA VINODKUMAR PATEL
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First Respondent:
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MINISTER FOR IMMIGRATION & BORDER
PROTECTION
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ADMINISTRATIVE APPEALS TRIBUNAL
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REPRESENTATION
Counsel for the
Applicant:
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Mr Hegedus
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Solicitors for the Applicant:
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HopgoodGanim Lawyers
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Counsel for the Respondents:
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Ms Wheatley
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Solicitors for the Respondents:
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Clayton Utz
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ORDERS
THE COURT ORDERS ON A FINAL BASIS:
(1) That the Application filed 3 August 2015, Amended on
6 September 2016 and Further Amended on 19 September 2016 be dismissed.
(2) That the Applicant pay the First Respondent’s costs thrown away by the
adjournment on 19 September 2016 in the sum of $2,702.50.
(3) That the Applicant pay the First Respondent’s costs of the proceedings
in the sum of $7,328.00.
FEDERAL CIRCUIT COURT OF AUSTRALIA AT
BRISBANE
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BRG 700 of
2015
VIMALKUMAR AKA VINODKUMAR
PATEL
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Applicant
And
MINISTER FOR IMMIGRATION & BORDER
PROTECTION
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First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
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Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
- These
reasons were delivered ex tempore on 12 February 2018 and have been settled and
corrected for grammatical errors in order to
convey the precise intention of the
Court.
- In
the case before the court the applicant is a citizen of India born on 25 July
1992. He arrived in Australia on 20 November 2013
as the holder of a student
visa subclass 572. He was going to undertake an initial English course and then
a Masters of International
Tourism and Hotel Management. He subsequently
applied for other student visas. One application was actually withdrawn, but
relevantly,
on 6 October 2014 the applicant made an application for a student
subclass 572 visa. On the very next day his previous visa that
had been in
operation – the subclass 573 – was cancelled due to a breach of
condition 8516 because his enrolment in the
Masters of International Tourism and
Hotel Management had not been maintained.
- He
was hoping to become enrolled in what I will refer to as, “vocational
courses”, referred to as Certificate IV Commercial
Cookery and Diploma of
Hospitality. These courses were relevant for a subclass 572 visa, and that is
what the applicant was now
applying for because he was intending now to pursue
the vocational courses, and, as it transpires, he says he was also intending
to
then go back to the masters course. But for present purposes he applied on 6
October 2014 for the subclass 572 visa.
- On
28 October 2014 a delegate of the Minister’s refused the application on
the basis that the applicant did not meet the requirements
of clause 572.223 of
the regulations made under the Migration Act. In particular, the delegate was
not satisfied that the applicant intended genuinely to stay temporarily in
Australia. On 3 November
2014 the applicant applied to the Migration Review
Tribunal, now known as the Administrative Appeals Tribunal, for a review of the
decision of the delegate. The applicant is here today and has had the benefit
of an interpreter as well, and of course, he is represented
by Mr Hegedus of
counsel.
- On
8 July 2015 the tribunal handed down its decision and affirmed the decision of
the delegate. Subsequently the applicant filed
an application for judicial
review in this court, and the matter came on in late 2016. At about that time
– maybe on that
day, maybe slightly before – the applicant sought to
amend the application by adding another ground, and an adjournment was
granted,
and the matter has now come back before the court. The three grounds of the
particular application are found in the so-called
further amended application
filed on 19 September 2016.
- Ground
number 1 reads:
“1. The Administrative Appeal Tribunal
("”the Tribunal"”)failed to consider a relevant issue that affected
the exercise
of its authority in making a decision not to grant the Applicant a
visa and in so doing committed jurisdictional error.
Particulars
(a) The Tribunal, at the hearing on 8 July 2015 and in the written
record of the decision of the same date, did not consider evidence
led by the
Applicant to the effect that his intention was to undertake a subsequent course
of study (a Masters level course) to the
course of study the subject of the
application (a Certificate IV in Commercial Cookery and a Diploma of
Hospitality) and then return
to India.”
- It
is essentially that the Administrative Appeals Tribunal or the tribunal failed
to consider a relevant consideration or a relevant
issue, namely it is contended
by the applicant that the tribunal did not consider evidence led by the
applicant to the effect that
his intention was to undertake a subsequent course
of study, a masters level course, to the course of study the subject of the
application
which was the Certificate IV in Commercial Cookery and a Diploma of
Hospitality and then return to India.
- The
court does have the benefit of the transcript and, of course, the reasons. In
the reasons which are contained in the court bundle
– this bundle will be
exhibit 1, by the way, for the purposes of this hearing. In particular I note
page number 14 of the
bundle, and I should be more specific. Paragraph number
16 of the decision states:
- “16.
The applicant told the Tribunal that on arrival in Australia, he completed his
English course with a good score and full
attendance, then withdrew from the
Masters in International Tourism and Hotel Management at SCU after the first
semester because
he could not get good assessment scores and he found the course
too hard. He then enrolled in Commercial Cookery and Hospitality
at Spencer
College. The Tribunal observed that in doing so the applicant had breached
condition 8516 of his TU 573 visa as this
college was not an eligible provider
in the context of the student visa streamline arrangements under which his visa
was granted....”
- I
note in particular what was stated in paragraph number 16. There’s a
sentence that begins, “Noting that many students”
and it reads as
follows:
- “....Noting
that many students had successes and failures in the course of their study, the
tribunal questioned why a genuine
student would abandon a higher degree course
for a lesser course like commercial cookery after only one semester. The
applicant
responded that he was advised to first do Commercial Cookery then do
the masters course when he was more experienced, which is why
he applied to
Spencer College.”
- In
that paragraph alone it seems to me to be a sufficient reason to dismiss ground
number 1. Quite clearly the tribunal even in those
two sentences in paragraph
16 it is clear that the tribunal had, in fact, considered the evidence led by
the applicant about his
intention to undertake a subsequent course at a masters
level after he finished the course at the vocational level. Down further
in
paragraph number 21 the tribunal was considering his future plans – that
is, the applicant’s future plans. Paragraph
21 states:
- “21.
In terms of his future plans, the applicant said that if he got a good job in
Australia, he would do this job and would
then go to India to work in a hotel or
open his own business. He confirmed that, as noted in his 9 September 2014
statement, he
is assured of a position as restaurant manager at Indian Whisper
Restaurant on the Gold Coast after he finishes his course and plans
to work
there during the Commonwealth Games in 2018. He said the manager at the hotel
where he previously worked in India assured
him of a job when he gets his higher
degree and gains some experience; and that his job offer stands, even if he does
not return
for four years. The Tribunal is sceptical about the solidity of such
an open-ended offer in the face of changing economic circumstances.
While the
presence of the applicant’s family in India provides some incentive for
him to return there, the Tribunal considers
that this may be outweighed by the
applicant’s positive job prospects in Australia, where he has indicated
that he has supportive
friends and a girlfriend.”
- It
is certainly my view that so far as ground number 1 is concerned, it must be
dismissed.
- I
was referred to a particular decision, the decision of Saini – Saini v
Minister for Immigration and Border Protection [2016] FCA 858. It is a
decision of Logan J. I note paragraph 30. I note paragraph 9 of the decision
sets out clause 572.223:
- “9. It
is necessary now to set out from the Regulations cl 572.223 as it stood at
the time when the Tribunal gave its decision:
- Subclass
572—Vocational Education and Training
- 572.22
— Criteria to be satisfied at time of decision
- 572.223
- (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) the applicant
meets the requirements of subclause (2).
(2) An applicant meets the requirements of this
subclause if:
- (a) the
applicant gives the Minister evidence in accordance with the requirements
mentioned in Schedule 5A for the highest assessment
level for the applicant;
and
- (b) the Minister
is satisfied that the applicant is a genuine applicant for entry and stay as a
student, having regard to:
- (i) the stated
intention of the applicant to comply with any conditions subject to which the
visa is granted; and
- (ii) any other
relevant matter; and
- (c) the
Minister is satisfied that, while the applicant holds the visa, the applicant
will have access to the funds demonstrated
or declared in accordance with the
requirements in Schedule 5A relating to the applicant’s financial
capacity”
- This
is from the regulations I referred to earlier. The Minister has to be satisfied
that:
- “....The
applicant is a genuine applicant for entry and stay as a
student...”
- The
Minister, essentially, has to be satisfied that the applicant intends genuinely
to stay in Australia temporarily having regard
to various matters that are set
out: The applicant’s circumstances, the applicant’s immigration
history etc. Logan
J was saying:
- “30.....What
is required is an evaluation by the decision-maker of intention as at the time
of decision.”
- The
time of decision, of course, is July of 2015, and the tribunal, based upon all
of the evidence, had come to the conclusion that,
in fact, essentially the
applicant involved was not intending genuinely to stay in Australia temporarily.
I note the finding or the
observation at paragraph number 20 – in the last
two to three lines of paragraph 20 in the tribunal’s decision where
it is
noted:
- “20....In
the Tribunal’s view, his interest in staying in Australia overrides his
interest in any particular course he
might pursue.”
- Having
regard to that observation by the tribunal, having regard to the other
paragraphs to which I have referred – namely paragraphs
16 and 21 of the
tribunal’s decision – it was certainly open to the tribunal on the
evidence before it to conclude that
the applicant at the time did not have an
intention genuinely to stay in Australia temporarily. Further, it is apparent
from a review
of those parts of the decision to which I have referred combined
with the other concerns raised by the tribunal in its decision,
noting paragraph
19 about concerns about inconsistencies in his evidence and about his study
intentions including which courses he
would undertake – taking into
account all of those matters the tribunal concluded that the applicant did not
have the genuine
intention to remain in Australia temporarily.
- On
a consideration of those matters to which I have referred, I am satisfied that
the tribunal did, in fact, consider evidence led
by the applicant to the effect
that it was his intention to undertake a subsequent course of study. That is,
he said he was going
to do the masters level after the vocational level and then
return to India. In the transcript that was provided – it is clear
enough
that the – for instance, page 12 of the transcript from about line 5 or
line 4 where the member said, “What are
you plans?” and he said,
“My plan is to study again.” So quite clearly by reference to the
word “again”
he was going to do the vocational course and then he
was going to do the masters course, and he says it there at page 12. These
matters were considered further at page 13 in the transcript.
- It
is plain enough that he made himself clear that he was going to do the
vocational then go and do a masters, and these matters were
taken into account
and considered by the tribunal. Ground number 1 therefore fails – is
dismissed – for the tribunal
clearly did consider the relevant
consideration.
- The
second ground is referred to as, “the tribunal asking itself a wrong
question”, and the particulars are:
- “2. The
Tribunal asked itself a wrong question which affected the exercise of its
authority in making a decision not to grant
the Applicant a visa and in so doing
committed jurisdictional error.
- (a) The
Tribunal in its written record of decision of 8 July 2015 determined that the
Applicant's "interest in staying in Australia
overrides his interest in any
particular course that he might pursue. ”It is submitted that question is
not determinative
of the issues that fell to the Tribunal for consideration,
namely whether the Applicant intended to pursue his studies and whether
the
Applicant's intention to remain in Australia was of a temporary
nature.”
- Many
of the comments I have made in relation to ground 1 are appropriate here too.
Now, this regulation to which I have referred
also requires consideration.
There is also so-called direction number 53 made under section 499 of the
Migration Act.
- Ground
number 2, in the way it has been particularised, reference has been made to some
words used in quotes in the particulars that
the tribunal in its written record
of decision determined that the applicant’s “interest in staying in
Australia overrides
his interest in any particular course that he might
pursue”. It is worth noting in relation to this particular ground and
the
reference to the wording used in the reasons of the tribunal – it is worth
noting and reminding ourselves of what was said
by the High Court in the Wu Shan
Liang case that the reasons of the tribunal are not to be scrutinised with an
eye keenly attuned
to error: Minister for Immigration and Ethnic Affairs v Wu
Shan Liang & Anor (1996) 185 CLR 259.
- I
am satisfied that the tribunal knew precisely what question it needed to ask
itself and what question it needed to answer. That
is clear enough from
paragraphs 6, 7 and 8 of the reasons. It sets out there the regulation. It
notes that the tribunal must have
regard to direction number 53, the types of
matters to be taken into account, and this is all assisting in determining the
questions
set out in clause 572.223 subsection (1)(a) for the Minister to
basically be considered and satisfied that the applicant intends
genuinely to
staying in Australia temporarily. The fact that perhaps a slightly different
form of words was used at one stage in
the reasons, it does not mean that it
amounts to jurisdictional error.
- The
tribunal was required to consider “as at the time of the decision”
–“what was the intention of the applicant?”
The tribunal did
ask itself the correct question and came to a conclusion. In paragraph 25, for
instance, it says:
- “25.
On the basis of all the evidence before it, 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.572.223(1)(a).”
- It
is very apparent from there that finding, that conclusion that the correct
question was asked and answered. Ground number 2 is
dismissed.
- Ground
number 3 states:
- “3.
The Tribunal failed to take into account the value of the relevant course of
study to the Applicant’s future as required
by Ministerial Direction no.
53. In doing so, the Tribunal failed to take into account a relevant
consideration and committed jurisdictional
error.
- Particulars
- (a).
Ministerial Direction no 53 – “Assessing the Genuine Temporary
Entrant Criterion for Student Visa Applications"
was a direction given by the
Minister of Immigration and Citizenship to delegates performing functions under
the Migration Act 1958 pursuant to what was then section 499(1) of the Act.
The Direction commenced on 5 November 2011 and was still in place at the time of
the Tribunal's decision to refuse the
Applicant's application for a student visa
(subclass 572). The Direction required that for applicants for student visas,
the decision
maker “must ... have regard to the value of the course to the
applicant's future."” The course or courses which were
the subject of the
Applicant's visa application were a Certificate IV in Commercial Cookery and a
Diploma of Hospitality. The record
of the Tribunal's decision does not
indicate that the Tribunal considered the value or otherwise of these courses to
the Applicant's
future.”
- It
is maintained that the tribunal failed to take into account the value of the
relevant course of study, and reference is made to
Ministerial Direction number
53, and at the outset it must be noted decisions in relation to this Direction
number 53. In relation
to that direction what is required is that there needs
to be a consideration as to whether the tribunal’s decision in substance
had regard to the matters in Direction number 53, and that was confirmed in two
particulars cases, Adigbo v Minister for Immigration and Border
Protection [2016] FCCA 2250, a decision of Judge Driver, and a decision
called Nguyen v Minister for Immigration and Border Protection [2013]
FCCA 1864 – a decision of Judge Lloyd-Jones.
- Also
I note the actual Direction itself, part number 2, directions, assessing the
genuine temporary entrant criterion. Paragraph
number 1:
- “Decision-makers
should not use the factors specified in this direction as a checklist. Rather,
they are intended to guide
decision-makers to weigh up the applicant’s
circumstances as a whole in reaching a finding about whether the applicant
satisfies
the genuine temporary entrant criterion.”
- This
question of the value, I note, for instance, paragraphs 7 and 12 which forms
part of Direction number 53. Paragraphs 7 and 12
are relevant:
- “7.
For Primary applicants of subclass 570, 571, 572, 573, 574, 575 and 576 Student
visas, decision makers must also have regard
to the value of the course to the
applicant’s future......
12. Decision
makers must have regard to the following factors in 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 prospects in their home
country. Decision makers should allow for
reasonable changes to career or study
pathways.
b. Relevance of the course to the student’s past or proposed future
employment either in their home country or a third country.
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”
- Paragraph
7 talks about when the tribunal has regard to the applicant’s
circumstances, the tribunal must also have regard to
the value of the course to
the applicant’s future, and that seems to be the specific complaint
alleged in ground number 3.
Well, the decision itself does, in a number of
parts, deal with this. Paragraph 7 of the decision notes – it is quite
clear
the tribunal knew that it was mandatory for the tribunal to have regard to
Direction number 53, and dot point number 1 is indeed
the applicant’s
circumstances in their home country, potential circumstances in Australia and
the value of the course to the
applicant’s future.
- Further
explanation of that “value of the course” – that is what is
contained in paragraph 12 of the Direction number
53, and (a), (b) and (c) are
relevant there. 12(a) talks about whether the student is seeking to undertake a
course that is consistent
with their current level of education, so a
consideration of the level of education. That is done in paragraph number 12,
small
(a), of the reasons by the tribunal including where the tribunal
said:
- “12....However,
after completing less than four months of the Masters degree, the applicant
cancelled his enrolment and applied
to study significantly cheaper courses at
the Certificate IV and diploma level at an education provider. That was not
eligible under
the streamline arrangements.....”
- There
is a reference and a consideration and a taking into account – it seems to
me – of the level of the courses which
is one of the matters for the
tribunal to take into account under Direction 53, noting paragraphs 7 and 12, in
particular 12(a):
level of education, level of courses. Further, paragraph 14
of the decision, the last sentence in particular, it says:
- “14......The
Tribunal explored with the applicant his circumstances in India and Australia,
his immigration and study history,
and other relevant matters including the
delegate’s concerns at paragraph 12”
- The
concerns in relation to the level of education, level of the course. And it
refers there to “in India and Australia”,
so 12(b) comes into it,
relevance of the course to the student’s past or proposed future
employment either in their home country
or a third country. Paragraph 16 again
is relevant, this time to ground 3, especially the last couple of sentences.
The tribunal
clearly – where it uses the words:
- “16....Noting
that many students had successes and failures in the course of study, the
tribunal questioned why a genuine student
would abandon a higher degree course
for a lesser course like commercial cookery after only one semester. The
applicant responded
he was advised to first do commercial cookery then do the
masters course when he was more experienced which is why he applied to
Spencer
College.”
- The
point is, of course, here is a consideration and a taking into account by the
tribunal of the matters required by Ministerial
Direction number 53 including at
this point the question of the two levels of the different courses and so on.
In paragraph 21 the
tribunal referred to the applicant’s future plans.
Reference there is made to future employment. Particularly it is referred
to in
India. It is also referred to in Australia. There is a consideration. Again,
paragraph 24 states:
- “24.
In the Tribunal’s view, its concerns as outlined above, including the
applicant’s adverse immigration and
study history, including the breach of
condition 8516 of his previous visa; his change of course from Higher Education
Section in
Masters in Tourism and Hotel Management with an approved provider to
a Vocational sector course in Cookery after just one semester;
and his apparent
wish to shift back to a Higher Education Sector course in order to be eligible
for streamlined visa arrangements;
raise the Tribunals concerns as to whether he
is a genuine applicant for entry and stay as a student in
Australia.”
- Reference
was made here again by the tribunal in relation to the different standards of
courses, the different level of education,
his history, his change of courses,
and so on.
- It
may be that there is not a specific reference in the reasons to
“remuneration” – precise terms – although
there is a
reference, for instance, 12(c) talks about:
- “...remuneration
the applicant could expect to receive in the home country or a third country
compared with Australia.”
- In
paragraph 21 the tribunal mentions a good job in Australia. The applicant said
he would do this job then go back to India to work
in a hotel or open his own
business. Reference was made to a job at a restaurant called Indian Whisper
Restaurant on the Gold Coast.
I reiterate what I said earlier that it is quite
clear from Ministerial Direction number 53 itself is not to be used as a
checklist.
It is a guide only. The fact that there may not be a specific
reference to comparable remuneration in one country or another or
a comparison
of remuneration in one country or another, the fact that there is no specific
reference to that does not mean that this
amounts to jurisdictional error
because, as indicated earlier, what is required is for the tribunal in its
decision to have regard
in substance to the matters in Direction number 53.
- I
reiterate that I am satisfied that the tribunal, in fact, did have regard to
such matters. Even the reference to the phrase or
the use of the phrase
“a good job in Australia”. That necessarily, it seems to me,
implies or infers or refers to as
part of that concept of a good job – it
seems to me that a consideration of remuneration is probably bundled up in that
in
any event.
- I
am satisfied that when the entirety of the tribunal’s decision is
considered, I am satisfied that the tribunal has indeed
correctly considered the
guiding factors in Ministerial Direction number 53. The tribunal, when it
considered all of the relevant
matters, while the tribunal was having regard to
Direction number 53, the tribunal came to the conclusion that it was not
satisfied
that the applicant intended genuinely to stay in Australia
temporarily. Such a conclusion, as I have said, was open on the evidence
before
the tribunal including the references in paragraph 21 to the fact that whilst
the applicant might have had family in India
and that may have provided some
incentive for him to return there, the tribunal considered that that incentive
was outweighed by
the applicant’s positive job prospects in Australia and
the fact that the applicant told the tribunal he had supportive friends
in
Australia and a girlfriend in Australia.
- Taking
those matters into account and all of the evidence generally the conclusion
reached by the tribunal was open to it, and no
jurisdictional error has been
identified by the grounds in the particulars, and the application should be
dismissed with costs.
- The
orders will be as sought, paragraphs 41, (2) and (3).
I certify
that the preceding thirty-nine (39) paragraphs are a true copy of the reasons
for judgment of Judge Howard
Date: 11 April
2018
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