FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Home Affairs [2019] FCA 271

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent’s costs.

3.    Order 2 made on 15 February 2019 be vacated and in lieu thereof it be ordered that the first and second appellants pay the first respondent’s costs thrown away by reason of the adjournment granted on that day.

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

REASONS FOR JUDGMENT

YATES J:

1    The appellants appeal from a judgment of the Federal Circuit Court of Australia (the Circuit Court) given on 7 August 2018, which dismissed the appellants’ application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal’s decision affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (now the Minister for Home Affairs) (the Minister), not to grant the appellants Student (Temporary) (Class TU) (Subclass 572) visas.

2    The first appellant, Ramandeep Kaur, was the primary applicant for the visa. The second, third and fourth appellants’ applications were based on the fact that they are members of the first appellant’s family unit. The second appellant is the first appellant’s husband. The third and fourth appellants are the first and second appellants’ children. In these reasons I will refer only to the first appellant’s position (because only her circumstances are relevant to the appeal) and, in that connection, refer to her as, simply, the appellant.

3    The delegate refused the applications because she was not satisfied that the appellant intended genuinely to stay in Australia temporarily. On this finding, the appellant did not satisfy the requirement of cl 572.223(1)(a) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). The appellant did not contend that she otherwise satisfied cl 572.223.

4    The appellant sought review of the decision by the Tribunal. A hearing was conducted on 17 February 2016. On the basis of the evidence and arguments presented at the hearing, and having considered the appellant’s circumstances, immigration history and other matters the Tribunal considered to be relevant, the Tribunal also was not satisfied that the appellant intended genuinely to stay in Australia temporarily—the requirement of cl 572.223(1)(a)—and affirmed the decision under review.

5    The appellant sought judicial review of the Tribunal’s decision. This application was based on the alleged fraud of her migration agent. The precise details of that allegation need not be repeated in these reasons. Suffice it to say that the primary judge did not accept the appellant’s evidence. Further, the alleged fraud, had it existed, did not impact on the discharge of the Tribunal’s decision-making functions. The primary judge therefore dismissed the appellant’s application.

6    On 23 November 2018, Thawley J extended time to file and serve a notice of appeal in this Court. His Honour ordered that a draft notice of appeal dated 29 August 2018 be taken to be the notice of appeal as filed.

7    Although it contains a number of paragraphs, the notice of appeal really advances the following grounds:

    the respondents took into account irrelevant considerations, namely that the course of study undertaken by the appellant was not relevant to the future work of farming; and

    the appellant gave a sufficient explanation for the concerns raised by the respondents as to the lack of progress in her studies.

8    The appellant contends that, by reason of these two matters, the respondents misapplied cl 572.223(1)(a) and, therefore, the Circuit Court was in error.

9    I make the following preliminary observations.

10    First, none of these grounds was raised before the Circuit Court as grounds of judicial review. Although Thawley J extended time to file a notice of appeal in the form of the draft notice of appeal, I do not understand his Honour’s order to extend to granting leave to the appellants to rely on grounds of appeal that raise issues not reflected in the grounds of judicial review before the Circuit Court. It follows that the leave is required to rely on the grounds of appeal raised in the notice of appeal that has been taken to have been filed.

11    Secondly, to the extent that the grounds of appeal seek to raise matters of error in the delegate’s decision—as they appear to do—that decision is beyond the jurisdiction of the Circuit Court and also of this Court: see ss 476(2) and s 476A(1) of the Migration Act 1958 (Cth) (the Act).

12    On 23 November 2018, the appellants were ordered to file and serve a written outline of submissions ten business days before the hearing of the appeal. This order has not been complied with. No written outline has been provided for the Court’s assistance. At the hearing today, I invited the appellant to explain, and address me on, the grounds of appeal, which she did. The Minister has filed and served an outline of submissions.

13    I turn to deal with the substantive aspects of the grounds of appeal on which the appellant seeks to rely.

14    The contention that the Tribunal took into account irrelevant considerations is, with respect, misdirected. On analysis, the ground is no more than a challenge to the correctness of the Tribunal’s finding that the appellant’s course of study—a Certificate III in Financial Studies—was not relevant to the appellant’s future intentions of farming in India.

15    The Tribunal recorded the following matters at [13] – [14] of its Decision Record:

13.    The Tribunal indicated its concerns with her studies, she has 2 very small children with many medical problems and she has not provided the Tribunal with sufficient information to be able to assess her progress in the course she claimed to be attending. The Tribunal indicated it was concerned as to why she was studying a Certificate III in Financial Studies when her family has a farm and that study was not relevant to her future. She stated that her husband was in politics in India, they were living in a village as the head of the village and he had to work with people. The Tribunal indicated that it would appear that she does not need financial services qualifications to work in a family farming business. She responded that they are growing vegetables to send them for sale outside their area. It is a big farm and in the winter they grow carrots and have to sell them in the market which is not in the area. The Tribunal asked how the subjects studied in financial services translated to working in that farm environment. She said that it is different but it gives her ideas about work safety measurements, there are also some subjects about trans sea shipping. The Tribunal asked why she did not do this course in India and she responded in Australia it is better than in India and in India it is totally different.

14.    The Tribunal suggested that people study the Certificate III in Financial Studies in Australia to obtain work as financial service managers. The Tribunal asked if she was attending courses. The Tribunal indicated that the Internet site of Oz Star Academy, accessed during the hearing, http:l/www.ozstaracademy.edu.au/ indicated that it was a course for persons to enter financial services industry and subjects included responding to customer sales and services in maintaining financial records, clerical duties and career opportunities suggested were Financial Planner, Financial Advisor and Advisor Assistant. The applicant stated that she had done all those subjects. The Tribunal explained to her that she had not been able to explain those subjects to the Tribunal. The Tribunal indicated it had concerns about her genuineness as a student for that reason and lack of relevance of the course she studied in order to run a farm. The Tribunal put that she was extending her stay in order for medical attention for her children. She said that once the course was finished she hoped her daughter would be better, her son is all right and she needs the visa for 4 to 5 months before going home. She does not have any family in Australia and it is difficult without family to take care of the children.

16    The relevance of the appellant’s chosen course of study to her intended farming activities in India was, plainly, a relevant consideration going to the question of whether she was a genuine applicant for entry and temporary stay in Australia as a student. At [21] and [23] – [24], the Tribunal said:

21.    The applicant is now enrolled in a course of study, Certificate III in Financial Studies, at Ozstar Academy. This is a particularly sad case as the applicant has 2 children, one child with a serious medical condition. She lives in Australia with her husband, who works full time and the couple do not have any immediate family in Australia able to assist with the care of those children. The Tribunal accepts that it is difficult to care for 2 young children without family assistance and especially caring for a child with a serious medical condition that will continue for the rest of the child's life, which could be short. The applicant's daughter has had to attend many medical appointments for her ongoing medical issues.

    ...

23.    The applicant claims that her course of study will assist her in her career when she returns to the family farm in India. The Tribunal accepts that financial studies would give the applicant ideas but the Tribunal is not satisfied that this course, financial planning, is relevant to farming in India even if the produce grown was to be sold in another market village.

24.    The Tribunal places greater weight on applicant's lack of knowledge of the subjects studied in her course and the medical condition of her daughter who the applicant acknowledges has a limited life span and a need for constant medical attention. Weighing up the applicant's circumstances the Tribunal is of the view, on balance, that the applicant is studying in Australia in order to maintain ongoing residence in Australia which allows the 3rd named applicant to obtain ongoing Australian medical treatment.

17    These findings were open to the Tribunal, based as they were on the appellant’s own explanations as to the relevance of the course in question. No jurisdictional error is revealed. The appellant submitted today that she was unprepared for the Tribunal hearing and was nervous, and that she made mistakes in things she said to the Tribunal. However, it is not the function of this Court, hearing an appeal from the Circuit Court, to conduct a fresh hearing in relation to the merits of a visa applicant’s application. I endeavoured to explain this to the appellant.

18    The significance of the contention that the appellant in fact provided a sufficient explanation for the lack of progress in her studies is not apparent on the face of the notice of appeal. The implication appears to be that the Tribunal rejected the appellant’s explanation, but this is clearly not the case. Even so, the ground appears to raise, once again, no more than the correctness of findings of fact. The Tribunal recorded the following matters at [8] – [9] of its Decision Record:

8.    At the Tribunal hearing, held on 17 February 2016, the applicant told the Tribunal that she had commenced studying nursing after her initial arrival in May 2009 in Australia. She had completed a 3 year Diploma of Nursing in India but the education agent had told her to study in a particular institute in Australia but she left that institute because she wanted to study in a better course. When she came from India she intended to complete a degree in Nursing but she found the course very hard and her father was ill at that time, he then passed away so she was not able to finish the degree. After her husband arrived in Australia, she became pregnant. Their child, a daughter, was born in February 2013 with life threatening conditions. She stopped studying nursing prior to the birth of her daughter and was unable to continue her studies due to her child's medical conditions. The child had so many problems and those problems will continue for the rest of her life, which could be short. Her daughter had to go to many medical appointments for her ongoing medical issues. Her son, born in December 2014, is normal but he spent 15 days in hospital for an infection on the brain. The applicant had applied for leave of absence from her course, but then they told her she had to come to the college.

9.    The applicant's husband is not able to take care of the children, he works in customer service. When the 2nd child was born the applicant was studying a Diploma of Accounting and she did not finish that because of her daughter. Now she is studying Financial Services, it started in August last year, her attendance is good and her focus is good.

19    At [19] – [20] of its Decision Record, the Tribunal found:

19.    The applicant has been enrolled in a number of courses since her arrival in Australia in May 2009 as the holder of a Student (Temporary) (Class TU) 573 visa. The Tribunal accepts that she commenced studying for a Degree in Nursing, but not only found the course very hard but also lost her father at that time and was unable to complete her degree. She subsequently applied for and was granted a Student (Temporary) (Class TU) 572 visa, she stopped studying prior to the birth of her daughter in February 2013 and due to her daughter's life threatening medical conditions was unable to study for a period of time. Whilst studying a Diploma of Accounting her son was born in December 2014, and he spent 15 days in hospital for his medical condition. The applicant applied for leave of absence from her course, but was told she had to come to the College.

20.    The Tribunal is satisfied that the applicant needed to take time away from her studies in order to care for 2 children with varying illnesses. There is no evidence before the Tribunal to suggest that the applicant's status in Australia since her arrival has not been lawful.

20    Once again, no jurisdictional error is revealed.

21    On the basis of these conclusions, it follows that the appellant has not shown that the Tribunal misapplied cl 572.223(1)(a) of Sch 2 to the Regulations, as she has contended. It also follows that her appeal must be dismissed even if leave were to be granted to allow her to raise these matters which, as I have said, were not agitated below.

Disposition

22    The appeal will be dismissed with costs.

Associate:    

Dated:    1 March 2019

SCHEDULE OF PARTIES