FEDERAL COURT OF AUSTRALIA

Devi v Minister for Home Affairs [2019] FCA 380

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time within which to appeal be dismissed.

2.    The applicants pay the costs of the first respondent, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER J:

1    The applicants apply, in effect, for an extension of time within which to file a notice of appeal from the orders of the Federal Circuit Court of Australia. That Court dismissed the applicants’ application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal affirming a decision of the delegate of the Minster for Home Affairs not to grant each of the applicants a Higher Education Sector Student (Class TU) (Subclass 573) visa (the 573 visa).

2    The application was filed only three days out of time, so the real point for consideration is the merits of the application.

BACKGROUND

3    The first applicant is a citizen of India and on 23 November 2013 was granted a Higher Education Sector Student (Class TU) (Subclass 573) visa on the basis of her enrolment in an English Language Bridging Course and a Masters of Management. The first applicant was due to commence that course on 28 July 2014.

4    On 18 August 2014, she cancelled the enrolment.

5    On 18 February 2016, she applied for the 573 visa the subject of these proceedings, putting before the delegate material referred to in a deferral request she made on 16 July 2014, along with other material.

6    On 1 April 2016, the delegate found the first applicant failed to meet the criteria for the grant of the 573 visa. The delegate was not satisfied the first applicant intended genuinely to stay temporarily in Australia as a student.

BEFORE THE TRIBUNAL

7    The first applicant sought review in the Tribunal on 14 April 2016. The second applicant was included as a member of the family unit. In June 2017, the first applicant was invited to attend a hearing before the Tribunal via a letter sent to her email address after the lodgment of a change of contact details notification lodged with the Tribunal. She attended the hearing via phone to give evidence and to present argument. The Tribunal in the course of that hearing raised with her the question of whether she was a genuine temporary entrant. The Tribunal referred to the material that had been provided by her and identified that she had come to Australia to study at a Masters level but had only completed courses at the Vocational, Education and Training sector level.

8    The Tribunal questioned the first applicant about her future plans asking her why she did not do those particular studies at home, noting that she provided no satisfactory answer. The Tribunal was of the view that she would have had plenty of opportunity to get practical experience in India. It referred to and took into account that the first applicant’s daughter was at home in India, providing some incentive to return, but nonetheless found that the current circumstances presented a strong incentive for the first applicant to remain in Australia.

9    The Tribunal took into account the content of the courses that the first applicant had undertaken, finding that her motivation for enrolling in a three year course was to stay in Australia, rather than a genuine desire to follow an academic pathway. In those circumstances, the Tribunal also concluded that she did not meet subclass 573.223(1)(a) of the Migration Regulations 1994 (Cth) and affirmed the decision under review. That subclass provides as follows:

(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

…

IN THE FEDERAL CIRCUIT COURT

10    The grounds advanced by the applicants in the Federal Circuit Court were also presented by way of an affidavit with different content. It was set out in full in the primary judge’s reasons (at [14]):

 1. I was born on 1st of April 1986 in India in a town Pundri in Haryana.

  2. After completing my study in India, I decided to take my further study in Australia.

 3. I was granted study visa in November 2013.

 4. I was enrolled in ELICOS to meet entry requirement for Masters of Management at Curtin University.

 5. I was enrolled in Masters of Management at Curtin University.

 6. I did completion of ELICOS in two attempts.

 7. After completion of Elicos I was advised by Curtin University on 16th of July 2014 that course requirement for Masters of Management has changed.

 8. I was offered Masters of Commerce (Professional Accounting).

 9. I realised accounting laws and regulations in Australia are quite different than one in India.

10. I was struggling to get hold of Masters of Commerce as I come from non-accounting background.

11. Career Prospects are not very high in India after completion of Accounting from Australia considering different laws and regulations in place.

12. After so much happening in such a short span I was shattered and unable to understand what was happening.

13. I had to restart from scratch.

14. Finally, after some brain storming I decided to change my career pathway to Hospitality.

15. In recent times we have seen massive boom in this industry due to exposure of global brands.

16. I applied for extension of my student visa 18 February 2016.

17. I tried to explain in my GTE while applying for visa

18. I got refusal from DIBP on 1st of April 2016.

19. I further applied for review of decision in given time frame.

20. I got my review refused on 29th August 2017.

21. I am still continuing my study and currently enrolled in advance diploma of leadership management.

22. I have completed my study without any gap meeting requirement of student visa.

23. I would like to bring to attention of federal circuit court that decision maker has made an error in judgement.

24. I believe my case was not addressed properly and I should be given another chance to explain my side.

11    The primary judge explained to the first applicant the nature of the hearing and she confirmed she understood the nature of the hearing as explained. She maintained that she was a genuine temporary student and that she wished to continue her studies.

12    Shortly stated, the Federal Circuit Court explained that it did not have power to revisit the merits and that the submissions from the bar table for the first applicant, in substance, invited the Court to do so. The primary judge was of the view that nothing she said from the bar table identified any relevant error by the Tribunal in its conduct of the review in the Tribunal’s reasons. While she disagreed with the finding, she did not identify any relevant legal error.

13    The grounds set out in the affidavit did not advance the position beyond this, according to the primary judge. The Federal Circuit Court could not identify any error in the reasoning of the Tribunal and saw no basis to conclude the Tribunal misunderstood or failed to give real or genuine consideration to the first applicant’s evidence and submissions. Any assertion that the case was not properly addressed was without substance.

14    The Federal Circuit Court was satisfied on the material that the first applicant had a real and meaningful hearing before the Tribunal. The Tribunal complied with the statutory obligations and afforded procedural fairness. Its conclusions were open for the reasons it gave. The reasons were logical and could not be said to lack an evident and intelligible justification.

IN THIS COURT

15    The grounds of appeal for the applicants are not cast as conventional grounds of appeal, but rather as before the Federal Circuit Court are set out in an affidavit which reads as follows:

1.    I am the applicant of the application for review of Migration Decision and I am authorised to make this affidavit.

2.    All the facts stated in this affidavit are true to best of my knowledge, information and belief.

Case History

 3.    I was born on 1st of April 1986 in India in a town Pundri in Haryana.

4.    After completing my study in India, I decided to take my further study in Australia.

 5.    I was granted study visa in November 2013.

6.    I was enrolled in ELICOS to meet entry requirement for Master of Management at Curtin University.

 7.    I was enrolled in Master of Management at Curtin University.

 6.    I did completion of ELICOS in two attempts.

7.    After completion of ELI COS I was advised by Curtin University on 16th of July 2014 that course requirement for Master of Management has changed.

 8.    I was offered Master of Commerce (Professional Accounting).

9.    I realized accounting laws and regulations in Australia are quite different than one in India.

10.    I was struggling to get hold of Master of Commerce as I come from non-accounting background.

11.    Career Prospects are not very high in India after completion of Accounting from Australia considering different laws and regulations in place.

12.    After so much happening in such a short span I was shattered and unable to understand what was happening.

 13.    I had to restart from the scratch.

14.    Finally, after some brain storming I decided to change my career pathway to Hospitality.

15.    In recent times, we have seen massive boom in this industry due to exposure of global brands.

 16.    I applied for extension of my student visa 18 February 2016.

 17.    I tried to explain in my GTE while applying for visa

 18.    I got refusal from DIBP on 1 of April 2016.

 19.    I further applied for review of decision in given time frame.

 20.    I got my review refused on 29th August 2017.

21.    I am still continuing my study and currently enrolled in advance diploma of leadership management.

22.    I have completed my study without any gap meeting requirement of student visa.

Error in decision

23.    The reason why I changed my course after coming to Australia was because Curtin University changed the entry level requirements for the course and with my English Language Proficiencies at that time I was not eligible to gain Entry to the course.

24.    Curtin University provided me with alternative pathway ·which I accepted and after continuing that course for 6 months I failed all the units as it didn't suit my capabilities.

25.    I was assessed as a non-Genuine student by Department of Home Affairs and Migration review tribunal based on changing my course of study and has not considered the circumstances correctly.

26.    I believe my case was not addressed properly and I meet the criteria for genuine student as addressed in Ministerial Direction 69 issued under Section 499 of the Migration Act 1958.

(Emphasis added.)

16    I construe the ‘grounds’ as favourably to the first applicant as I can to mean that the Federal Circuit Court should have held that the change in course was forced upon her by circumstances beyond her control and that the delegate should have found her to have been a genuine student at all material times.

17    The first applicant took a similar approach in the Federal Circuit Court, producing grounds of review by way of an affidavit, which are set out above.

18    The grounds of appeal restate the factual background and emphasise once again that the first applicant is a genuine student. In the hearing before me, she made it clear that she could easily return to India without any concerns, but that she wished to continue her studies here. I expressly invited the first applicant to identify error in the approach taken by the Federal Circuit Court. The only error pointed to was disagreement with the conclusion.

19    As in the Federal Circuit Court, this Court cannot entertain review on the merits alone. No error was demonstrated in the approach taken either in the Tribunal or the Federal Circuit Court.

CONCLUSION

20    As the appeal lacks merit, the application for extension of time within which to appeal must be dismissed with costs.

Associate:

Dated:    20 March 2019