FEDERAL COURT OF AUSTRALIA Vunyale v Minister for Immigration and Border Protection [2016] FCA 1373 Appeal from: Vunyale v Minister for Immigration & Anor [2016] FCCA 1761 File number: VID 867 of 2016 Judge: MARKOVIC J Date of judgment: 10 November 2016 Legislation: Migration Act 1958 (Cth) ss 65, 499 Migration Regulations 1994 (Cth) cl 572.223(1)(a) Date of hearing: 10 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 24 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondents: Mr O Young, Sparke Helmore ORDERS VID 867 of 2016 BETWEEN: ROHIT VUNYALE Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: MARKOVIC J DATE OF ORDER: 10 November 2016 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is to 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. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) MARKOVIC J: 1 In this matter, the appellant appeals from orders made and a judgment handed down by the Federal Circuit Court of Australia (Federal Circuit Court) on 15 July 2016 dismissing an application for judicial review of a decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal): Vunyale v Minister for Immigration & Anor [2016] FCCA 1761 (Vunyale). The Tribunal had affirmed the decision of a delegate of the first respondent (the Minister) not to grant the appellant a Student (Temporary) (class TU) visa (the Visa) under s 65 of the Migration Act 1958 (Cth) (the Migration Act). background 2 The appellant is a citizen of India. On 30 March 2009, he was granted his initial Student (class TU) (subclass 572) visa offshore. That visa was valid until 1 June 2011. The appellant arrived in Australia on 15 April 2009. 3 On 10 October 2013, the appellant applied for the Visa. On 21 October 2014, a delegate of the Minister refused the grant of the Visa because, in his view, the appellant did not satisfy the requirements of cl 572.223(1)(a) of Sch 2 to the Migration Regulations 1994 (Cth). This was so because the delegate was concerned by the appellant's limited completion of studies in Australia, his gaps in studying, his failure to complete any course above diploma level and because he had chosen a series of short, inexpensive diploma courses indicating he was attempting to use the student program to maintain his residence in Australia and that he was not a genuine student. 4 The appellant then applied to the Tribunal for review of the delegate's decision. On 15 April 2015, the Tribunal invited the appellant to appear at a hearing before it on 4 May 2015 to give evidence and present arguments. The Tribunal also asked the appellant to provide the following information: (1) a copy of his current certificate of enrolment as required for the grant of a student visa; (2) documents showing that the appellant was currently enrolled in a course or had an offer of enrolment in a registered course; (3) documents showing the appellant's past studies in Australia, including copies of attendance certificates, academic transcripts, certificates of completion and documents evidencing any work related to past or intended studies in Australia; and (4) an explanation of any gaps in the appellant's enrolments and any documentary evidence relevant to that explanation. 5 The Tribunal also informed the appellant that it would assess whether he genuinely intended to stay in Australia temporarily as required by cl 572.223(1)(a) of the Regulations and enclosed a copy of Direction No. 53, titled "Assessing the genuine temporary entrant criterion for Student visa applications" (Direction No. 53). 6 On 17 April 2015, the appellant provided a response to hearing invitation to the Tribunal together with various documents, including a statement he had prepared which addressed, among other things, matters relevant to Direction No. 53. On 4 May 2015, the appellant attended the Tribunal hearing, assisted by his migration agent. 7 On 11 May 2015, the Tribunal affirmed the delegate's decision to refuse the grant of the Visa. the tribunal decision 8 The Tribunal identified that, having regard to the appellant's proposed course of study, the relevant subclass was subclass 572 and the issue to determine was whether the appellant met the time of decision criterion in cl 572.223. 9 The Tribunal noted that cl 572.223(1)(a) relevantly provided: (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 … 10 The Tribunal also noted that, in considering whether the appellant met the criterion, it had to have regard to Direction No. 53 and set out the relevant factors to be taken into account. 11 After setting out the appellant's submissions made to the Tribunal and to the Minister's department, the Tribunal: (1) set out the courses that the appellant had completed in Australia and recorded that it had asked the appellant why he had entered into three new enrolments relating to commercial cookery and hospitality, which were all low-level qualifications. The Tribunal recorded that the appellant told it that he wanted to undertake those courses at AITT where he had completed other courses. The Tribunal expressed its concern with the appellant's decision to return to low-level qualifications and inexpensive courses that were extending his time in Australia for limited outcome: Tribunal decision record at [13]-[15]; (2) noted that the appellant told it that he had selected these courses because he had a passion for cooking, wanted to open a business and take on a franchise when he returned to India and that he wanted to know the skills from the beginning. The appellant told the Tribunal that he had not decided to use his business and management skills because it was difficult to get work in that area and he wanted to run a business in the restaurant area: Tribunal decision record at [16]-[17]; (3) discussed the appellant's application for a 457 visa which was no longer proceeding because the appellant's employer was no longer nominating him and the application had been refused. However, the Tribunal noted that the appellant told it that he was still employed by his employer: Tribunal decision record at [18]; (4) expressed its significant concerns that the appellant was using his studies to extend his stay in Australia, noting he had made no reference to going into the restaurant industry when he applied for his original student visa but had said at that time that he was seeking to develop skills in the IT area. The Tribunal also found the appellant's responses to its queries about his plans to open a restaurant in India to be vague and evasive. The Tribunal considered the appellant's plans with respect to the value of his future studies to future employment to be "limited, vague and lacking in detail" and the plan to establish a business in India as made up for the purpose of meeting the genuine temporary entry criterion. The Tribunal had significant concern that the appellant had entered into this area of study simply to extend his time in Australia and not as a genuine student with plans to use the skills learned in any future employment: Tribunal decision record at [19]-[21]; (5) considered that the appellant's present employment gave him a tie to Australia that had some currency and a reason to stay in Australia: Tribunal decision record at [22]; and (6) noted that the appellant was alone in Australia, that his family was in India and that he had strong financial reasons for returning to India and placed some weight on that consideration: Tribunal decision record at [23]. 12 Overall, and having considered the appellant's circumstances, immigration history, the considerations in Direction No. 53 and other relevant matters, the Tribunal was not satisfied that the appellant intended genuinely to remain in Australia temporarily and accordingly found that he did not meet cl 572.223(1)(a). The Tribunal also found that the appellant did not meet the requirements of any of the other subclasses within class TU or subclass 580. the federal circuit court proceeding 13 On 27 May 2015, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. The appellant's application filed in the Federal Circuit Court is lengthy and discursive. It takes issue both with the delegate's decision and the Tribunal's decision. To the extent it addresses the Tribunal's decision, it challenges the Tribunal's findings, including (as written): 13. Tribunal and Delegate is saying that inexpensive courses taken applicant, I will doubt the definition of "inexpensive courses", because of I am paying 8000.00 plus material fee around 10,000.00 – amounted nearly 10,000.00 AUD to 12,000.00 AUD, including training equipment, costing around 6000.00 AUD a semester to finish certificate III in commercial cookery. … 15. Pages 6 of 8 at Migration Review Tribunal Decision at para 18, tribunal has brought the 457 visa application and 457 review which has given me negative weight by Tribunal Member, but if applicant comes to Australia with different aspects and lived here in Australia for five years and got offer from employer for 457 visa. If employer applied for 457 visa, how this would effect on applicant? … 17. According to ministerial direction 53, I am satisfying every single criterion of the direction and still my visa and review have been refused on the basis of their own thoughts wrongly exercised minister directions. This is harming the student freedom and putting more stress on overseas students, causing the trauma. 14 The appellant requests the: ... judge to look in to this matter and kindly rectify these issues and take a legitimate judgement which would help future innocents may effect in same manner. 15 In dismissing the appellant's application, the primary judge held that his grounds of review did not reveal any basis for alleging jurisdictional error, nor was it apparent that the Tribunal decision was otherwise affected by jurisdictional error. The primary judge found that the appellant's application amounted to impermissible merits review. The primary judge also held that the Tribunal had regard to Direction No. 53 and to the criteria for the grant of the Visa: Vunyale at [19]-[20]. the appeal 16 The appellant's notice of appeal filed on 29 July 2016 raises one ground of appeal. That is (as written): The court did not consider the fact that the Tribunal had considered irrelevant facts in deciding my case, for eg, my lodgement of 457 visa. 17 The appellant did not file any written submissions in support of his appeal. At the hearing, the appellant made a number of oral submissions. He informed the Court that he had been in Australia since 2009 and that he had pursued several courses but had a study gap because he wanted to change colleges. He also submitted that he has now applied to do certificates III and IV commercial cookery at a different college and applied for the Visa based on those courses. But he has completed these courses, and he submitted that he is now pursuing another course. 18 The appellant submitted that he has been a genuine temporary entrant. He submitted that he wanted to change his career direction and is now interested in the food industry. He also submitted that he does not understand Direction No. 53. consideration 19 The appellant's sole ground of appeal claims that the primary judge did not consider that the Tribunal took into account an irrelevant consideration, namely the appellant's application for a 457 visa. None of the appellant's submissions went directly to this issue, nor did any of the appellant's submissions address whether the primary judge made any appealable error. 20 Direction No. 53, which the Tribunal was required to comply with by reason of s 499 of the Migration Act, specifies as a matter to be considered in weighing up an applicant's circumstances, an applicant's immigration history. Paragraph 14 of Direction No. 53 provides that in considering an applicant's immigration history, decision makers must have regard to, among other things, previous visa applications for Australia, including if the applicant previously applied for an Australian temporary or permanent visa, whether those applications are yet to be finally determined, were granted, or grounds on which they were refused. 21 In addition, para 9(c) of Direction No. 53 states that in considering an applicant's economic circumstances in his or her home country, decision makers must have regard to economic circumstances of the applicant not to return to their home country, which may include consideration of the applicant's circumstances relative to the home country and to Australia. 22 In my opinion, the lodgement for an application for a 457 visa was not an irrelevant consideration. The Tribunal was required by Direction No. 53 to consider the appellant's immigration history, including past visa applications. Further, as submitted by the Minister, the Tribunal considered that the fact that the appellant continued to be employed by his employer, despite the unsuccessful application for the 457 visa, gave the appellant an incentive to remain in Australia and a tie to Australia and was a matter that the Tribunal took into account as part of its consideration of the matters it was required to consider under Direction No. 53 relating to the appellant's economic circumstances and incentive to stay in Australia. The Tribunal did not take into account an irrelevant consideration. The conclusion reached by the Tribunal that the appellant did not meet the relevant visa criteria was open to it on the material before it. 23 Further, the primary judge did have regard to the Tribunal's consideration of the application for a 457 visa. The primary judge did not err in failing to find that the Tribunal took into account an irrelevant consideration. There is no error in the reasoning of the primary judge let alone appealable error. As his Honour observed, the appellant sought impermissible merits review by his application filed in the Federal Circuit Court and the Tribunal's decision was not otherwise affected by jurisdictional error. disposition 24 In light of the conclusion which I have reached, the appellant's appeal should be dismissed and the appellant ordered to pay the Minister's costs as agreed or taxed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate: Dated: 10 November 2016