FEDERAL COURT OF AUSTRALIA Prajapati v Minister for Immigration and Border Protection [2015] FCA 823 Citation: Prajapati v Minister for Immigration and Border Protection [2015] FCA 823 Appeal from: Prajapati & Anor v Minister for Immigration & Anor [2015] FCCA 1356 Parties: HETAL LOMESH PRAJAPATI and LOMESH NIRANJAN KUMAR PRAJAPATI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number(s): VID 303 of 2015 Judge(s): DAVIES J Date of judgment: 11 August 2015 Catchwords: MIGRATION – Student (Temporary) (Class TU) Visa – Appeal from decision of Federal Circuit Court – No error of law – Appeal dismissed Legislation: Migration Act 1958 (Cth), ss 474, 476 Migration Regulations 1994 (Cth), sch 2, cl 572.223 Cases cited: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Date of hearing: 11 August 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 8 Counsel for the First Appellant: The First Appellant appeared in person Counsel for the Second Appellant: The Second Appellant appeared in person Counsel for the First Respondent: Mr A Aleksov Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent entered a submitting appearance, save as to costs IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 303 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: HETAL LOMESH PRAJAPATI First Appellant LOMESH NIRANJAN KUMAR PRAJAPATI Second Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: DAVIES J DATE OF ORDER: 14 AUGUST 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellants pay the First Respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 303 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: HETAL LOMESH PRAJAPATI First Appellant LOMESH NIRANJAN KUMAR PRAJAPATI Second Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: DAVIES J DATE: 11 August 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 The Appellants have appealed the decision of the Federal Circuit Court of Australia ("FCC") dismissing their application for review of the decision of the Migration Review Tribunal ("the Tribunal") to affirm the decision of the Minister not to grant the First Appellant a Student (Temporary) (Class TU) Visa. It was not disputed that the Second Appellant's application would be granted or refused in accordance with the result of the First Appellant's application, as the Second Appellant is the secondary visa applicant. 2 The Tribunal found that the First Appellant did not meet an essential requirement of Clause 572.223(1) of Schedule 2 to the Migration Regulations 1994 (Cth) for the grant of the visa, namely the Minister was not satisfied that the First Appellant intended genuinely to stay in Australia temporarily: see Clause 572.223(1)(a). At paragraphs 21 to 25, the Tribunal reasoned as follows: 21. On the basis of the above the tribunal is satisfied and finds that the [First Appellant] was not enrolled or [studying] between 13 December 2011 (after completing the Certificate III in Children's Services qualification) and 10 September 2012 when she enrolled in the Diploma of Children's Services course scheduled to commence on 8 October 2012 and to be completed on 11 April 2014. 22. The tribunal finds that the [First Appellant] was issued a confirmation of enrolment in respect of the Diploma of Children's Services (Early childhood education and care) course in September 2012 which was scheduled to be completed on 11 April 2014. The [First Appellant] has not however completed that course. Indeed she is not now enrolled in the course but states that she wishes to be granted a student visa so that she can commence that course. She claims she did not know she was able to do study after her visa application had been refused. The [First Appellant] acknowledges she did not ask her education provider, a migration agent or the Department if she was able to continue study once the visa application had been rejected. The tribunal considers that the [First Appellant] made basically no effort in order to study the Diploma of Children's Services. The tribunal does not accept that the [First Appellant] in fact commenced study in the course by attending for six months as she claimed to do. The tribunal has concerns about the [First Appellant's] credibility on that matter and finds her evidence on that point and more generally regarding her enrolment in the Diploma of Children's Services course is not reliable. The [First Appellant's] failure to make basic efforts to pursue studies in Australia, in the tribunal's view, weighs heavily against her claim to be a genuine applicant for entry and stay temporarily in Australia as a student. She has a gap in studies and remained without enrolment in a registered course for a significant period of time. 23. The [First Appellant] provided to the tribunal documents from Kangan Institute in respect of her enrolment in a Certificate IV in Information Technology (networking) in 2010. The documents show that the [First Appellant] failed almost all subjects. 24. The [First Appellant] was first granted a student visa in July 2010 now four years ago. In that time she has completed only one qualification, a Certificate III in Children's Services. The tribunal considers the [First Appellant's] academic record since the grant of the student visa is poor. As set out above the [First Appellant] acknowledged that she had financial issues which impeded on her ability to study in 2012 (although she had earlier raised various reasons why she could not do so). The tribunal does not accept that medical issues prevented the applicant from enrolling in 2012. The tribunal has found that the [First Appellant] made very little effort to pursue studies in the Diploma of Children's Services, a course that she now claims she wishes to commence, but is not enrolled in. It may be that the [First Appellant], as she claimed at one point, was unable to afford to pay for the required health insurance but that factor also weighs against the [First Appellant's] claim to be a genuine applicant for entry and stay temporarily in Australia as a student. Had the [First Appellant] commenced the course in February 2012, or even in October 2012 she would have completed that course by now. The [First Appellant] was not enrolled in any registered course between 13 December 2011 and 10 September 2012 which is, in the tribunal's view a significant period given the [First Appellant] had been granted student visa for the purpose of studying. 25. On the basis of the above, and having considered the [First Appellant's] circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the [First Appellant] intends genuinely to stay in Australia temporarily. Accordingly, the [First Appellant] does not meet cl.572.223(1)(a). 3 The grounds for judicial review were as follows: 1. The [Tribunal] decision wasn't made by the explanation given by me. 2. The [Tribunal] had given the decision only on the basis of evidence. 3. I haven't finished my Diploma in "Children's Services" but just has finished Certificate III, since then I haven't worked anywhere because of my incompletion (sic) of study. The only intension (sic) to stay here in Australia just to finish my study. 4 The FCC concluded that none of the grounds of review identified any jurisdictional error. As to ground 1, the FCC stated that: …there is no obligation on the Tribunal to accept any explanation given by an Applicant. The obligation upon the Tribunal is to afford procedural fairness to the [First Appellant]; to make relevant findings of fact; and to make a decision open to it on the basis of the evidence before it, including country information. As to ground 2, the FCC stated that: …there is no error where a Tribunal makes its decision on the basis of the evidence before it. Indeed, that is its role. As to ground 3, the FCC stated that: …[it was] difficult to concede as a ground of review, but the [First Appellant] may be claiming that the Tribunal failed to take into account relevant considerations. 5 The FCC stated at paragraphs 22–26: 22. The Tribunal was satisfied the Applicant was not enrolled or studying between December 2011 after completing the Certificate III in Children's Services qualification and 10 September 2012 when she enrolled in the Diploma of Children's Services course scheduled to commence on 8 October 2012 and to be completed on 11 April 2014. The Tribunal noted that the Applicant had not completed that course, and indeed at the time of hearing was not now enrolled in the course. 23. The Tribunal considered the Applicant made no effort in order to study the Diploma of Children's Services and did not accept the Applicant in fact commenced studying the course by attending for six months as she claimed to do. The Tribunal had concerns about her credibility on that matter and found her evidence on that point and more generally regarding her enrolment as not reliable. The Tribunal said at paragraph 22 of its Decision Record:- "The applicant's failure to make basic efforts to pursue studies in Australia, in the tribunal's view, weighs heavily against her claim to be a genuine applicant for entry and stay temporarily in Australia as a student. She has a gap in studies and remained without enrolment in a registered course for a significant period of time." 24. In respect of the documents provided from Kangan Institute to the Tribunal relating to the First Applicant's enrolment in a Certificate IV in Information Technology (networking) in 2010, the Tribunal noted that documents showed the Applicant failed almost all subjects. 25. In addition to the above matters, the Tribunal noted that the Applicant had failed to provide evidence as to overseas student health cover, and her claim that she was at one point unable to afford to pay for the required health insurance, was a factor that also weighed against her claim to be a genuine applicant for entry and stay temporarily in Australia as a student. 26. The Tribunal concluded on the basis of these matters and having considered the Applicant's circumstances, immigration history and other matters it considered relevant, it was not satisfied the Applicant intended genuinely to stay in Australia temporarily. 6 The FCC concluded, at paragraph 27, that the Tribunal had taken into account the matters relevant to its determination as to whether or not the First Appellant met the criteria that were needed to obtain the visa, had weighed up the First Appellant's circumstances as a whole and made findings open to it on the evidence before it. The FCC stated as follows: [The Tribunal] did not fail to consider issues relevant to the matter to be decided by it. Whilst the Tribunal came to a conclusion contrary to that which the [First Appellant] asserts it should have concluded, this does not mean that the Tribunal failed in its task nor that it failed to take into account relevant matters. The Tribunal decision was neither illogical or unreasonable and the fact finding of the Tribunal cannot be criticised. The Tribunal did put weight on the [First Appellant's] circumstances which indicated to it that the student visa was intended by the [First Appellant] primarily for maintaining residence in Australia. 7 The grounds of appeal from the decision of the FCC are as follows: 1. The Federal Circuit Court should consider the situation of a past and the situation of a present of the applicant, As the previous decision made by MRT (migration review tribunal) was only noticed the situation for my previous financial circumstances and focused only on one thing that I (HETAL LOMESH PRAJAPATl) was unable to pay for overseas student health cover. And they have found that I was not genuine applicant. I haven't finished my Diploma in Children services and didn't get any job anywhere which proves that I was not staying in Australia just to earn money. I appeal for this to consider one more time. 2. MRT didn't consider my health issues for my reason for study gap. I was so depressed due to my miscarriage and got sick badly. I have submitted all the evidence for my medical treatment to MRT which never been considered. I have been to India back home to meet family for support and some treatment done during my study gap. When I came back then I rejoin my study but I didn't know that I have to get the admission in new term after break. If I knew then I would have finished my all medical treatment done in India before I came here to join my study. I have spent all my money to travel and to get back on track with my sickness so I wasn't able to pay overseas student health cover which I didn't know that, it was going to expire in near time. I appeal for this to be considered by Federal Circuit Court. 3. Federal Circuit Court didn't considered or asked [illegible] about why I have study gap and what was the circumstances. I did provided all the medical documents from India during my visit and all the treatment I have received in Melbourne when I was attending my DIPLOMA OF CHILDREN SERVICES classes. FEDERAL CIRCUIT COURT didn't weight on this side of my application before. 8 Each of the grounds, in substance, seeks impermissible merits review of the Tribunal's decision. It is not the function of this Court on appeal from the FCC to engage in fact finding about the merits of the First Appellant's case. For the reasons stated by the FCC, the FCC was correct to conclude that no jurisdictional error was disclosed in the Tribunal's reasoning. No appealable error is shown in the FCC decision. Accordingly, the appeal should be dismissed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate: Dated: 11 August 2015