FEDERAL COURT OF AUSTRALIA Sidhu v Migration Review Tribunal [2004] FCA 758 MIGRATION - application for review of decision of the Migration Review Tribunal – subclass 572 (Student) visa – genuine applicant for entry and stay – whether motivation of student for changing course is a relevant consideration Migration Act 1958 (Cth) s 474 Migration Regulations Sch 2 cl 572.223, Sch 5A cl 5A406 Chambers Dictionary LAKHWINDER SINGH SIDHU v MIGRATION REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Q 24 OF 2004 DOWSETT J 16 JUNE 2004 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 24 OF 2004 BETWEEN: LAKHWINDER SINGH SIDHU APPLICANT AND: MIGRATION REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: DOWSETT J DATE OF ORDER: 16 JUNE 2004 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 24 OF 2004 BETWEEN: LAKHWINDER SINGH SIDHU APPLICANT AND: MIGRATION REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: DOWSETT J DATE: 16 JUNE 2004 PLACE: BRISBANE REASONS FOR JUDGMENT The application 1 The applicant was born in 1982 in India. On 16 February 2000 he entered Australia on a temporary student visa, which visa was renewed from time to time. On 15 March 2003 he applied for a Student (Temporary) (Class TU) (Subclass 572) visa. The application was refused by a delegate of the second respondent (the "Minister"). The first respondent (the "Tribunal") subsequently affirmed such refusal. The applicant now seeks review of the Tribunal's decision. Facts 2 The background facts appear in pars 9, 10 and 14 of the Tribunal's reasons: '9. The visa applicant entered Australia on a Student (Temporary) (Class TU) subclass 560 visa on 16 February 2000, valid until 31 January 2001. On 2 March 2000 he was granted a further subclass 560 student visa which remained valid until 23 February 2001 when he was granted another subclass 560 student visa. This last subclass 560 student visa remained valid until he applied for a subclass 572 student visa on 15 March 2003. The visa applicant was granted a Bridging A Visa on 15 March 2003 on the basis of the application for a visa the subject of this review. 10. The visa applicant undertook a Certificate IV and Diploma in Information Technology at City Institute of Technology during the period January 2000 to 16 February 2001. He then undertook a Diploma of Information Technology at Swinburne University from 23 February 2001 until 15 August 2001. He then undertook a Diploma of Information Technology at Hales Institute from 27 August 2001 and completed this course on 27 August 2002. He then commenced a Diploma of Hospitality (Management) at the Australian College of Travel and Hospitality Management (ACTH) on 30 September 2002, with a completion date of 9 April 2004. ... 14. In a letter dated 24 June 2003, received by the Tribunal on 26 June 2003, the visa applicant's representative submitted that the visa applicant had completed his Certificate III in Commercial Cookery and is now eligible to apply for skilled migration as an onshore Overseas Student. The representative pointed out that the visa applicant would have to complete a Bachelor of Information Technology, another three years of study, to be eligible to apply for skilled migration in that field. The representative stated that the visa applicant needs a substantive visa in order to be able to apply as an overseas student in category Class DD, subclass 880, within 6 months. In a detailed submission the representative pointed out that the visa applicant has not changed his education sector (572). He referred to a high global demand for Computer Professionals at the time the visa applicant commenced his studies in Information Technology. He said there is now an overflow of Computer Professionals which means that many are unable to obtain employment in this field. He indicated that the visa applicant changed his course in view of this to a course in the hospitality sector where there is great demand globally. In these circumstances the representative submitted that the change to a career in hospitality would enhance the visa applicant's career and employment prospects in any country, including Australia and India. The representative also referred to another student who completed a Diploma of Information with the visa applicant, transferred to the Hospitality Diploma at the same time and was granted a student visa by the department.' Criteria for visa 3 To qualify for a Subclass 572 visa the applicant must satisfy the criteria specified in Sch 2, cl 572.223 which relevantly provides: '(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2). (2) An applicant meets the requirements of this subclause if: (a) the aplicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to: (i) ... (ii) ... (iii) other requirements under Schedule 5A; 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. 4 Subparagraph 572.223(2)(a)(iii) refers to Schedule 5A. As an Indian national, the applicant must satisfy assessment level 4 as prescribed therein. Subclause 5A406(1) provides: 'The applicant must give evidence: (a) ... (b) ... (c) that the applicant's principal course will: (i) enhance the development of the applicant's career; or (ii) assist the applicant to obtain employment; or (iii) assist the applicant to improve his or her prospects of promotion or of obtaining other employment.' 5 The combined effect of these provisions is somewhat complex. Primarily, the requirement is that the Minister be satisfied that the applicant is a "genuine applicant" (subcl 572.223(1)) 'because [he] meets the requirements of' subcl 572.223(2). The Tribunal considered that the applicant does not satisfy: · subpar 572.223(2)(a)(iii); or · par 572.223(2)(b). 6 Paragraph 572.223(2)(a) requires the applicant to "give evidence" of certain matters, including those specified in subpar 5A406(1)(c)(iii). That requirement is a rather unusual concept in this context. It might be thought to impose an obligation which is less onerous than that of satisfying the Minister of the matter in question. However the Tribunal seems to have proceeded on the basis that an applicant must produce evidence satisfactory to the Minister as to the various identified matters. I do not understand there to be any suggestion that the Tribunal erred in this respect. I will refer to the requirement that the applicant comply with par 5A406(1)(c) as the "employment test". 7 Paragraph 572.223(2)(b) requires that the Minster be 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.' 8 The Tribunal described its understanding of par 572.223(2)(b) at par 39 of its reasons as follows: 'Clause 572.223(2)(b) refers to the genuineness of the visa applicant for entry and stay as a student, which must be satisfied if a visa is to be granted. In determining whether that criterion is satisfied, a decision-maker is required to have regard to the stated intention of the applicant to comply with any conditions and any other relevant matter. The decision maker must then use a balancing process in reaching a conclusion on that single criterion. None of the matters of those paragraphs considered in isolation can be fatal to a visa applicant's case without the consideration of the other factors.' That approach has not been challenged. I will refer to this requirement as the "genuineness test". Evidence and findings 9 Following his arrival in Australia, the applicant undertook the following courses: · Certificate IV and Diploma in Information Technology at City Institute of Technology, commencing in January 2000 and concluding in February 2001; · Diploma of Information Technology at Swinburne University, commencing on 23 February 2001 and concluding on 15 August 2001; and · Diploma of Information Technology at Hales Institute, commencing 27 August 2001 and concluding on 27 August 2002. 10 On 30 September 2002 he commenced a Diploma of Hospitality (Management) course at the Australian College of Travel and Hospitality Management. He then expected to complete that course on 9 April 2004. As part of this course the applicant has obtained Certificate III in commercial cookery. His stated purpose in making his current visa application is to permit his completion of the Diploma of Hospitality (Management) course. 11 Following his unsuccessful visa application, the applicant's representative wrote to the Tribunal on 24 June 2003. The content of the letter appears at [2] of these reasons. 12 Attached to the submission were details of that other student, the applicant's results for his courses and a certificate dated 24 June 2003, certifying that he had successfully completed Certificate III in Hospitality (Commercial Cookery). The representative also attached an undated article from an unidentified source, concerning 'demand for chefs, cooks bakers and pastry cooks in Australia.' Other documents provided to the Tribunal indicated that the applicant had already applied for a permanent migration visa, relying on his Certificate III in Commercial Cookery. The documents also suggested that at least for the moment, his capacity to advance that application depended upon his being successful in his current application for a student visa. He seems to have said as much in the course of the hearing before the Tribunal. He also said that he was working for 20 hours per week as a cook, which employment was permitted by his existing visa conditions. The Tribunal's decision Employment test 13 The applicant was required to give evidence that his course would: · enhance the development of his career; · assist him to obtain employment; or · assist him to improve his prospects of promotion or of obtaining other employment. 14 He had completed three information technology courses between January 2000 and August 2002, a period of more than two and a half years. There is no suggestion that he has ever sought employment in that industry, either in India or Australia. However he asserted that in both countries, employment prospects for information technology diplomates were poor, and that qualified people were driving taxis. Although he made quite broad assertions in this regard, he provided little other evidence. The Tribunal said that it had been given no probative evidence to that effect. It also pointed out at par 35 that: '... it became clear at the hearing that the employment market is not the principal reason for the visa applicant's change of career path. Based on the visa applicant's own evidence at the hearing the Tribunal finds that the visa applicant's motive for undertaking his new course is his belief that he will be able to apply for permanent residence more quickly than by continuing his career path in the information technology industry. There would appear to be no inhibition on the visa applicant's motive, but it does not support the proposition that he is seeking to undertake the hospitality course for genuine employment reasons.' 15 It then observed that there was nothing in the applicant's background which could be considered relevant to a new career in commercial cookery. It also noted that he was seeking permanent residence, relying upon his Certificate III in commercial cookery, a lower level of qualification than those which he already held in information technology. The Tribunal concluded that the applicant's change in career from information technology to hospitality '...is inconsistent with previous studies and would not enhance his career.' 16 In this context, the Tribunal also referred to par 68.5 of a policy document which provides: 'Intention to remain in Australia In granting a Student visa it is expected that a student will study in Australia and abide by their visa conditions. There are now 2 permanent visa classes: · the Skilled Independent Overseas Student visa (Residence) (Class DD); and · the Skilled Australian Sponsored Overseas Student visa (Class DE); that mirror current offshore visas under the general points test scheme and that enable successful tertiary-qualified overseas students to apply for a permanent visa onshore: A Student visa applicant who intends to apply at the end of their studies for a permanent visa in Australia on the grounds of meeting the requirements for visa class DD or DE should be considered a genuine applicant for entry and stay as a student –' 17 The last paragraph directs that a person who comes to Australia to undertake a course of study, intending to apply for permanent residence after such study, should not, by virtue of that intention, be excluded from obtaining a visa to permit his or her entry for the purposes of undertaking the course. However an applicant must still comply with the prescribed criteria for the grant of the relevant visa. 18 It is arguable that virtually any additional qualification has the potential capacity to improve career or employment opportunities. However par 5A406(1)(c) requires that there be evidence that the relevant course 'will´ bring about one of the matters there identified. Whether or not a course will produce a relevant effect depends, to some extent, upon the likelihood that a particular applicant will utilize the qualifications derived from it. That is a question of fact. 19 The Tribunal did not accept that employment opportunities in the information technology area are poor. It noted that the certificate which the applicant presently holds in cookery is at a lower level of achievement than the qualifications which he holds in information technology. These matters might well suggest that his proposed change of industry is unlikely to enhance his career. To these factors must be added his need for a student visa in order to advance his application for a permanent migration visa. Having regard to all of those matters, the Tribunal was not persuaded that the applicant intended to pursue a career in hospitality. Thus it was also not persuaded that his proposed course 'will assist' him in advancing his career. Perhaps the Tribunal should also have expressly addressed subpars 5A506(1)(c)(ii) and (iii). However, if he is not going to pursue a career in hospitality, courses in that area will not assist him to obtain promotion or employment. Genuineness test 20 In addressing this matter, the Tribunal had to undertake the balancing exercise which it described in par 39 of its reasons. It addressed a policy document which identifies the following as relevant matters for the purposes of par 572.223(2)(b): · the student's situation in his or her home country; · the student's academic record; · the student's links with Australia; · for the school sector only – inappropriate study plans. 21 The last-mentioned consideration was treated as irrelevant for present purposes. 22 The Tribunal noted that the applicant was from India and that there was a 'significant economic incentive for Indian nationals to migrate to Australia'. Clearly, the applicant intended to do so. The Tribunal again referred to par 68.5 and concluded: In the Tribunal's view the purpose underlying the application for a student visa in this case is incidentally to enable the visa applicant to be a student but principally to enable him to hold a substantive visa for the express purpose of applying for another visa.' 23 To be a 'genuine applicant for entry and stay as a student', one must genuinely wish to undertake the course in question in order to advance one's career or improve one's employment or promotion prospects. The intention to utilize the benefits derived from the course by seeking permanent residence and employment in Australia is, according to the policy, no bar to being "genuine". However, if the real intention is to acquire a status associated with a student visa in order to obtain a permanent migration visa, without any intention that such benefits be so used, it is a different matter. The Tribunal was not satisfied that the applicant, in seeking to undertake the nominated course, is genuinely motivated by a desire to acquire the skills or knowledge in question for the purposes of his career or for gaining employment or promotion. The Tribunal was therefore not satisfied that he was a genuine applicant for entry and stay as a student. Prima facie, this approach was correct. The APPLICATION 24 The applicant accepts that s 474 of the Migration Act 1958 (Cth) applies to the relevant decision and that he must therefore demonstrate jurisdictional error. Career and employment 25 The applicant submits that the Tribunal took too narrow a view of the meaning of the word "career". He refers to the Chambers Dictionary definition of "career" as: '1. one's professional life: one's progress in one's job. 2. a job, occupation or profession. ...' 26 The applicant submits that the Tribunal failed to consider the possibility that a person might change the nature of his employment in order to advance his career, implying that it correctly, but irrelevantly, concluded that courses in hospitality would not advance the applicant's career in information technology. The applicant submits that the true question is whether or not the course in question will advance his overall life-time career and employment opportunities. He also submits that his wish to complete the course should be seen in light of the fact that he has already completed part of it. In oral argument, it was pointed out that he is already working part-time in the hospitality industry. Although the Tribunal recorded this fact in its reasons, it did not expressly address it in its reasoning process. Given the Tribunal's view as to the applicant's motives, it may have considered such employment to be motivated by the same considerations as his application. Alternatively, it may have felt that part-time work is such an incident of student life as to be of little relevance for present purposes. In any event, the Tribunal's view as to the applicant's genuineness was based largely on his own frank admissions and his educational history whilst in Australia. His part-time work had little or no relevance to the approach taken by the Tribunal. Given the qualifications which the applicant had already accumulated in the area of information technology and its rejection of his assertions as to the difficulty of obtaining employment in that area, the Tribunal did not accept that his purported decision to move to the hospitality industry was, as they say, "a good career move". Further, the applicant had stated that he requires the visa in order to advance his migration application. Having regard to those matters, the Tribunal was not satisfied that the applicant proposed to pursue a career in hospitality. Thus it was not convinced that the course will advance his career. 27 Even if there be some gaps in the reasoning of the Tribunal in connection with the applicant's capacity to satisfy the requirements of par 5A406(1)(c), they do not affect the finding concerning genuineness. Irrelevant material 28 The applicant also submits that the Tribunal committed jurisdictional error in relying upon irrelevant material, namely the lack of any evidence of 'a poor market for information technology professionals, in assessing whether there was increased scope for employment for the applicant with an additional hospitality/cookery background' and '[t]he finding by the Tribunal that the applicant's motive for changing to another course was relevant to the assessment if whether his employment prospects were improved with the two professions in his career.' 29 As to the question of evidence concerning employment prospects, I have already pointed out that the evidence was sparse and that the Tribunal was entitled to reject the applicant's largely unsubstantiated claims. It is said that the Tribunal ignored relevant material, namely the applicant's evidence that he could obtain employment in the hospitality area. That was of no relevance, given that the Tribunal was not satisfied that he had any intention of pursuing a career in that area. 30 As to the relevance of motive, a particular course will only be relevant for present purposes if there is some reasonable possibility that the applicant will seek to rely upon the benefit of that course in his or her career or in seeking employment. The Tribunal appears to have thought it unlikely that the applicant was contemplating that possibility. Genuineness 31 It is said that in finding that the applicant was not genuine, the Tribunal either identified a wrong issue or relied on irrelevant material. It is suggested that the Tribunal was not entitled to rely upon the applicant's so-called "dual purpose" in seeking the visa. For reasons which I have already given, the Tribunal was entitled to proceed as it did. It is also said that the Tribunal erred by referring to par 68.5 of the policy document 'to support its finding that the applicant was not genuine'. It is not clear to me that the Tribunal in any sense relied upon par 68.5 as supporting its conclusion. It referred to that paragraph, perhaps because it was raised by the applicant (at AB 52), but in any event simply to demonstrate that it did not apply in the present case. 32 Other grounds are raised in the application, but they are little more than attempts to present disagreements with factual findings as jurisdictional errors. They add nothing to the points made in the submissions with which I have already dealt. Conclusions and orders 33 In summary, it may be that the Tribunal did not expressly deal with all aspects of par 5A406(1)(c). However the Tribunal's view that the applicant was motivated by his desire to accelerate his application for a permanent migration visa, taken with his history of study in the information technology area, suggested that in seeking to pursue the course in question, he was not motivated by a desire to obtain qualifications in hospitality and so was unlikely to utilize such qualifications if they were obtained. In any event, the conclusion that the applicant did not satisfy the requirements of par 572.223(2)(b) was not dependent upon the Tribunal's view of par 5A406(1)(c), although the two matters are closely linked. In the circumstances, the application must be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 15 June 2004 Counsel for the Applicant: Mr M F Wilson Solicitor for the Applicant: Sharma Lawyers Counsel for the Respondent: Mr M Brady Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 10 May 2004 Date of Judgment: 16 June 2004