Al-Dmoor v Minister for Immigration
[2020] FCCA 909
•1 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AL-DMOOR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 909 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) Visa – whether the Tribunal made a jurisdictional error – whether the Tribunal exhibited legal unreasonableness– whether the Tribunal misapplied the statutory scheme – no jurisdictional error made – application is dismissed. |
| Legislation: Migration Regulations 1994 (Cth), sch.2, cls.500.211, 500.212, |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423 Inderjit v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217 M64/2015 v Minister for immigration and border protection (2015) 258 CLR 173 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 Saini v Minister Immigration and Border Protection [2016] FCA 858 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 |
| First Applicant: | ASEM MAJED NAIF AL-DMOOR |
| Second Applicant: | AFNAN ADEL BADAWI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTUCULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3131 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 06 April 2020 |
| Date of Last Submission: | 06 April 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 1 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jones |
| Solicitors for the Applicant: | Aspire Australia |
| Counsel for the Respondents: | Ms Hammond |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.
The application is dismissed.
The first and second applicant jointly and severely pay the first respondent’s costs fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3131 of 2018
| ASEM MAJED NAIF AL-DMOOR |
First Applicant
| AFNAN ADEL BADAWI |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are husband and wife. The first applicant is a citizen of Jordan and arrived in Australia on 26 January 2012. The first applicant applied for a visa in order to undertake a study in a Diploma, an Advanced Diploma in Marketing and Communication, with course dates from 10 April 2017 to 16 March 2018. The second applicant is a citizen of the United States and applied for the visa on the basis of being a member of the first applicant’s family unit.
The first applicant has undertaken previous studies and achieved a Bachelor of Science and Software Engineering from Philadelphia University, Jordan in 2006. In Australia, the first applicant previously studied English and obtained a Master of Management (HR) (2015) and a Certificate IV in Marketing in 2016.
The applicants applied for the visas on 10 February 2017. A delegate of the Minister for Immigration and Border Protection (“the delegate”), refused to grant the visas on 21 April 2017. The delegate was not satisfied that the first applicant was a genuine applicant for entry and stay in Australia, temporarily as a student.
The applicants sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 10 October 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant’s Student (Temporary) (Class TU) visas.
The applicant now seeks judicial review of the Tribunal’s decision.
The Administrative Appeal Tribunal’s Decision
At paragraph 7 of its decision, the Tribunal sets out the delegate’s reasons for refusing the visa. This included that the first applicant was downgrading his level of study from a Masters degree to that of a vocational education course and that the first applicant had made significant changes in his field of study from Human Resources to Business and now Marketing.
The delegate did not consider this to be consistent with the behaviour of a genuine student who was expected to progress academically. The delegate noted the lack of any clear career direction and detailed information about the relevance of the courses to the first applicant’s employment picture, this indicated that the first applicant was using the student visa program to maintain ongoing residence in Australia and did not have a genuine intent to stay in Australia temporarily.
The delegate also noted that the first applicant had spent some 1763 days in Australia and only 79 days away from Australia since his arrival in 2012. Departmental records indicated that the first applicant had applied for but was refused a protection visa on 22 August 2012.
After setting out the requirements of the relevant clause being
cl 500.212(a) of the Migration Regulations 1994 (Cth), (“the Regulations”), at paragraph 13 of its decision, the Tribunal also noted it was required to have regard to Direction No 69 ‘assessing the genuine temporary entrant criterion for student visa and student guardian visa applications’.
This required the Tribunal to have regard to the following:
·the applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and;
·any other relevant information provided by the applicant, or information otherwise available to the decision-maker, including information that may be either beneficial or unfavourable to the applicant.
At paragraph 16 of its decision, the Tribunal acknowledged that the first applicant had undertaken and completed courses while in Australia. The Tribunal noted that the first applicant had now completed his Diploma of Marketing and Communications and claimed to have completed the Advanced Diploma of Marketing Communications around May 2018 but that he was not, at that stage, currently enrolled in any course of study. The Tribunal noted the requirement pursuant to cl 500.211 of the Regulations that the first applicant be enrolled in a course of study for the grant of the visa.
The first applicant claimed that his agent did not tell him, that he needed to be enrolled. The Tribunal drew to the first applicant’s attention, that when invited to the original Tribunal hearing on 13 July 2018, he had been requested to provide a copy of his current confirmation of enrolment, as required for the grant of the Student visa. On the first applicant’s own evidence, he stopped studying in May 2018. The Tribunal considered that if the first applicant was genuine in his intention to undertake further study, he would have proceeded with his proposed Masters of Marketing.
At paragraph 17 of its decision, the Tribunal noted that the first applicant was asked why he needed a Masters qualification in Marketing. The first applicant responded that his existing qualifications were not sufficient to find a good position in his home country. The Tribunal noted that the first applicant had been undertaking vocational and educational training and it was considered that his current studies, were not consistent with his existing level of education and were a regression of his level of qualification. This indicated to the Tribunal that the first applicant was using the student visa system as a means of maintaining ongoing residence.
At paragraph 19 of its decision, the Tribunal was also not satisfied that the first applicant provided reasonable reasons for not undertaking further study in his own country. The first applicant claimed that he needed overseas qualifications to obtain a good position for his future, but there was no evidence to support the submission. The Tribunal did not accept it in the first applicant’s circumstances. The Tribunal asked the first applicant whether he had tried to obtain employment with his existing qualifications and he replied that he had no evidence to present.
In paragraph 20 of its decision, the Tribunal considered the circumstances of the first applicant in Australia. The first applicant’s immediate family was onshore with him, being the second applicant and a 14-month-old daughter, at the time of the Tribunal hearing. The first applicant also has a brother in Australia who is married to an Australian resident. Until recently, the first applicant had another brother living in Australia, however, that brother had departed and returned to Jordan. The Tribunal considered that these family ties onshore operated as a strong incentive for the first applicant to remain in Australia.
At paragraph 21 of its decision, the Tribunal asked the first applicant how he supported himself. The first applicant advised that he had a small business running a convenience store in the Sydney CBD. The first applicant claimed to use the income from the business to support his family, as well as money from his parents in Jordan. The first applicant told the Tribunal that he had owned the business for the last three years. The Tribunal considered that the business interest of the first applicant would act as a significant incentive for him to remain in Australia. The acquisition of a business by the first applicant indicated that he saw Australia as a place to live for the reasonably foreseeable future and not just a place to obtain educational qualifications.
At paragraphs 22 to 24 of its decision, the Tribunal noted that the first applicant’s parents, together with some sisters and brother remain in Jordan. The first applicant has no assets or financial ties in Jordon. The Tribunal was not satisfied on the evidence before it that the family and economic ties in Jordan acted as a significant incentive for the first applicant to return to his home country. There were no circumstances of civil or political disturbance in Jordan that would act as an incentive for the first applicant to remain in Australia.
At paragraph 25 of its decision, the Tribunal reviewed the migration history of the first applicant. The first applicant confirmed that he had previously applied for a permanent visa while in Australia, being a protection visa in 2012. The first applicant claimed that it was not the case that he wished to remain in Australia permanently and it was just a temporary situation that revolved around the Arab Spring and the circumstances were no longer present in Jordan. The Tribunal however, formed the view that there is evidence that the first applicant sought to permanently remain in Australia in the past.
At paragraph 29 of its decision, the Tribunal concluded it was not satisfied that the first applicant was genuine in his reasons for staying in Australia and why he wishes to undertake further courses. The Tribunal was not satisfied that a further Master’s degree in Marketing would improve the first applicant’s career prospects. The Tribunal concluded at paragraph 30 of its decision, that it was not satisfied the first applicant intends to genuinely stay in Australia temporarily and does not meet the requirements of cl 500.212(a) of the Regulations.
Grounds of Appeal
Contained within the first applicant’s submissions, from the applicant’s Counsel filed on 17 March 2020, are proposed amended grounds of appeal. Any other grounds previously filed are abandoned. The grounds are as follows, verbatim:
1. The Tribunal made a jurisdictional error by making a finding of fact which was legally unreasonable in that it lacked an evident and intelligible justification Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] per Kiefel CJ and at [82] per Nettle and Gordon JJ) or by failing to give proper consideration to a particular matter (see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45]; Minister for Home Affairs v Omar [2019] FCAFC 188 at [36-43] ) being that the Applicant’s ownership of the business was a significant incentive for the Applicant to remain in Australia in circumstances where there was no evidence or consideration as to the success or otherwise of the business and whether not the business can be sold by the Applicant.
2. The Tribunal made a jurisdictional error by making a finding of fact which was legally unreasonable or otherwise misapplying the statutory scheme in relying upon the Applicant’s previous application for a protection visa as that matter was historical, was not necessarily permanent and in any event the seeking of a permanent visa did not of itself preclude a temporary intention notwithstanding Saini v Minister Immigration and Border Protection [2016] FCA 858; 245 FCR 358 at [30] per Logan J.
Counsel for the first respondent submitted that notwithstanding the fact that the application to amend the grounds of appeal had been made out of time, subject to reserving rights with respect to costs thrown away by reason of the late amendments, the first respondent did not oppose the applicant being granted leave to amend the application. In these circumstances, the Court granted leave to rely upon the amended grounds of appeal as set out above.
The Applicant’s Submissions
Counsel for the applicants noted that cl 500.212(a) of the Regulations, reads as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
i. the applicant 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.
With respect to ground one, Counsel for the applicants submits that the test for legal unreasonableness is well-known and need not be elaborated. The jurisdictional error of failure to give a proper, genuine and realistic consideration requires an active intellectual process directed towards the first applicant’s case (see Carrascalao v Minister for Immigration and Border Protection [(2017)] 252 FCR 352 (“Carrascalao”) at [45]). An intellectual engagement with the arguments put forward by the applicants is required. In Minister for Home Affairs v Omar [2019] FCAFC 188 (“Omar”) at [36]-[43] per Allsop CJ, the Court referred with approval, to the following passage from the judgement of Allsop CJ, with whom Markovic and Steward JJ agreed in Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423 at [3]:
The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
Counsel for the applicants submitted that at paragraph 21 of its decision, the Tribunal treated the acquisition by the first applicant of a business, being a convenience store, as inconsistent with genuine temporary entrant criterion. The Tribunal considered the ownership of the business as a significant incentive for the first applicant remain in Australia.
However, there was no engagement by the Tribunal with the circumstances of the first applicant’s ownership of the business. For example, can the business, be readily disposed of? Would the business be valuable at sale? These are matters which, had they been examined or even rejected, could have provided the relevant justification for the Tribunal’s findings. Alternatively, with regard to the circumstances of the business and the first applicant’s ownership would have ensured the requisite intellectual engagement by the Tribunal. The absence of such justification or engagement, is a jurisdictional error.
In relation to ground two, reference is made to Saini v Minister Immigration and Border Protection [(2016)] 245 FCR 358 (“Saini”) at [30], where Logan J held:
Equally, that an applicant for a Student visa may, at the time of decision, hope, for example, to undertake post-graduate study if successful in respect of the study for which the particular visa is sought, but nonetheless still leave once any further study is completed, it may be open to conclude that the visa-applicant does still have, at that time, an intention, “genuinely to stay in Australia temporarily”. The Regulations do provide for other classes of visa which may be sought on-shore so as to permit the holder of a Student visa to seek a visa which would permit a longer stay for further study or for employment. That means that, after the time of decision, there is potential for an intention to change, depending on later circumstances. It also means it is possible for there to be, at the time of decision, an intention to seek some further visa which will nonetheless lead to nothing more than further temporary residence. But if there is a settled intention, at the time of the decision, later to seek a visa that will lead to other than temporary residence, that intention is not consistent with an intention genuinely to stay in Australia temporarily. What is required is an evaluation by the decision-maker of intention at the time of the decision.
The Court was referred to Inderjit v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217 (“Inderjit”) at [38] – [39] and [41], per Rares, Burley and O’Bryan JJ stated:
[38] We do not understand Logan J to have held that the existence of a settled intention, at the time of the decision, later to seek a visa that would lead to other than temporary residence as necessarily negating any capacity for decision-maker to find the applicant for the visa genuinely intended to remain in Australia temporarily. Rather, his Honour stated that the existence of that settled intention was “not consistent” with an intention to “genuinely to stay in Australia temporarily”.
[39] Ordinarily, that lack of consistency may be expected to lead a decision-maker to examine closely whether its presence should result in the decision-maker not being able to form the requisite state of satisfaction justifying the grant of the visa. But as we read Logan J’s reasons, he did not hold that the decision-maker had to decide that the existence of a settled intention, at the time of the decision, if the opportunity to do so arose, later to seek a visa that would lead other than to temporary residence, necessarily negated the entitlement to seek a visa.
[41] A person’s intention is a question of fact for the decision-maker applying cl 500.212, based on all the material before it. A person may generally wish to return home after a course of study and thus entertain a genuine intention to stay temporarily, even though, at the same time remaining open to pursuing in the future what the person is considers to be unlikely, an opportunity, if it presents itself, to seek a permanent visa to do so. The decision in such cases, ultimately depends upon the decision-makers evaluation as to whether the applicant for the visa has satisfied him or her for the purposes of s 65(1)(a)(ii) of the Act, that the criteria for the visa prescribed cl 500.212 have been satisfied, in which case the Minister must grant the visa, or otherwise if not so satisfied to refuse it
Counsel for the applicants submitted that the present case is analogous to the reference at Inderjit at [41] above. There can be no doubt the applicant sought to remain permanently in Australia in the sense that, contrary to the first applicant’s evidence, the Tribunal found that the he pursued an application for a review, of a refusal of a protection visa. However, on the first applicant’s own evidence, the harm that he feared, had passed. The first applicant could not reasonably have considered the grant of a protection visa likely. The first applicant could only reasonably have considered it unlikely. It was not therefore a matter which necessarily weighed against the first applicant satisfying the genuine temporary entrant criterion. What the Tribunal did was inconsistent with a criterion as interpreted above or was otherwise, legally unreasonable.
During the course of oral submissions, the Court raised an issue that relates to first applicant’s compliance with cl 500.211 of the Regulations. This requires an applicant to be enrolled in a course of study, at the time a decision is made on the application (see note to cl 500.212 of the Regulations). It was clear from paragraph 16 of the Tribunal’s decision that the first applicant was not, at the time of the original decision or at the time the first applicant was before the Tribunal, enrolled in an approved course of study. Counsel for the applicants submitted that the requirement could be corrected if the Court were to find in the first applicant’s favour and remitted the matter back to the Tribunal. It was submitted that the enrolment was not a condition precedent and did not preclude subsequent enrolment. It should not be a ground for refusing to remit on the basis of futility.
The First Respondent’s Submissions
Counsel for the first respondent submits that ground one alleges that the Tribunal’s findings concerning the first applicant’s ownership of the business were legally unreasonable or lacked evident and intelligible justification, given that there was no evidence or consideration of the success of the business or whether or not the business can, or would be sold. In assessing unreasonableness, the question for the Court is whether the Tribunal could have reasonably come to the conclusion that it did (see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [21]). Unreasonableness as a ground of jurisdictional error is stringent and confined. In this case, the decision-maker’s statutory function called for a broad and subjective evaluation as to whether the applicant was a ‘genuine temporary entrant’. The task of demonstrating the requisite lack of “evidence and intelligible justification”, becomes a “virtually insuperable hurdle” (see Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [55] and 57])
Direction No.69 required the Tribunal to have regard to the first applicant’s potential circumstances in Australia, including ties to Australia. Counsel for the first respondent submitted that far from being legally unreasonable, in the absence of any evidence to the contrary, ownership of the business was plainly a matter the created a tie to Australia and an incentive for the first applicant to remain in Australia. At paragraph 21 of its decision, the Tribunal noted that it “indicated that the applicant saw Australia as a place to live for the reasonably foreseeable future”.
Ground one alternatively alleges jurisdictional error as a result of the Tribunal’s failure to give “proper consideration to a particular matter” by reference to the passages in Carrascalao. Counsel for the first respondent submitted that this submission must fail on the facts.
The Tribunal considered and engaged with the fact that the first applicant owned the business. The Tribunal questioned the first applicant about his ownership of the convenience store and the first applicant confirmed that he both owned and managed to store. While the first applicant had the opportunity to do so, he made no submission as to the success of the business, its value or his ability to sell the business if he was required to depart from Australia.
Counsel for the first respondent submitted that the first applicant’s complaint appears to be that the Tribunal did not actively seek to obtain certain favourable information from him. This misconceives the role of the Tribunal, which is limited to conducting a review. The Tribunal is under no duty to make its own enquiries in order to make the first applicant’s case, or to investigate his claims. Nor is the Tribunal required to conduct an enquiry to discover whether the first applicant’s case might be better put, or supported by other evidence.
Ground two suggests that a finding of fact by the Tribunal was legally unreasonable or that the statutory scheme was misapplied. It is said that this occurred because the Tribunal relied upon the first applicant’s prior application for permanent protection visa. Ground two does not identify with precision that the finding of fact are said to be unreasonable but it appears to be a challenge to the finding that the first applicant was not “a genuine temporary entrant”.
At paragraph 25 of its decision, the Tribunal considered, but rejected the first applicant’s submission that he was not responsible for persisting with a review to the then, Refugee Review Tribunal (“the RRT”). The first applicant submitted that his former migration agent had persisted in the review, despite his instructions to withdraw. No documentary evidence in support of this contention was provided. The Tribunal concluded that it was “not satisfied that the matter would proceed to review before the Tribunal without the instruction and agitation of the applicant”.
Counsel for the first respondent submitted that the first applicant’s immigration history is a matter that the Tribunal was expressly required to consider. There is nothing in the Tribunal’s reasons to indicate that the Tribunal considered that a prior application for a permanent visa ‘necessarily’ meant the first applicant could not satisfy the “genuine temporary entrant criterion”. The first applicant’s prior permanent visa application does not appear to have been especially significant in the Tribunal’s consideration, given its absence from the factors identified in the Tribunal’s conclusion at paragraph 29 of its decision. The first applicant’s complaint as it appears to be is that this matter should have been given even less consideration than it did.
Finally, Counsel for the first respondent submitted that the first applicant succeeds and established that either one of the challenged findings was legally unreasonable. The first applicant bears the onus of persuading the Court that this error was material in the sense that, had the Tribunal not made the finding of fact, that this could have realistically resulted in the Tribunal coming to a different conclusion (see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] - [46]). In assessing materiality, it was submitted that the Court could have regard to the Tribunal’s other reasons for not being satisfied that the first applicant was a genuine temporary entrant. These included that the first applicant was apparently, not currently involved in any course of study, had regressed his levels of study, admitted that he had provided misleading information to the Department about his intentions, failed to satisfactorily explain his reasons for seeking further study in Australia and having spent only 79 days away from Australia over more than six years. Given these findings, the Tribunal was entitled to find that the first applicant was not a genuine temporary entrant.
Consideration
The task that the Tribunal was required to perform was to conduct a review of the decision of the delegate to refuse a Student (Temporary) (Class TU) Visa. The delegate had determined that the first applicant was not a genuine temporary entrant to Australia for the purposes of study. In so doing, the Tribunal was required to have regard to the provisions of cl 500.212, as well as Direction No.69 of the Regulations. The latter specifically requires the Tribunal to have regard to the first applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to the first applicant’s future.
The Tribunal is also required to have regard to the first applicant’s immigration history, including previous applications for an Australian visa, or visas for other countries and previous travel to Australia or other countries. The Tribunal may also have regard to any other matter including information either beneficial or unfavourable to the first applicant.
The Tribunal is required to perform an evaluative task, taking into account all the information before it. The first applicant has been in Australia since 2012. The first applicant’s wife and child are with him. The first applicant completed a Masters in Management in 2015 and a Certificate IV in Marketing in 2016. The first applicant’s application for the extension of his visa was to complete a Diploma and Advanced Diploma in Marketing and Communication.
The first ground of complaint relates to the Tribunal’s conclusion at paragraph 21 of its decision that the first applicant’s acquisition and ownership of a business in Australia would act as a significant incentive for him to remain in Australia. The first applicant contends that this conclusion was legally unreasonable in that it lacked an evident and intelligible justification. It was submitted that there was no evidence or consideration as to the success or otherwise of the business and whether or not the business could be sold by the first applicant. It was submitted that there was no engagement by the Tribunal to circumstances of the first applicant’s ownership of the business, for example, if it was a franchise, if it could be readily disposed of and what the value of the business would be, on sale.
The transcript of the hearing before the Tribunal indicates the following interchange between the Tribunal member and the first applicant at page 13 of the Court book:
· Question: Are you living with anyone else or it’s just—
· Answer: my wife and my kid.
· Question: Your wife and your kid, okay. And are you working?
· Answer: I have a small job, a small convenience store.
· Question: okay. So, you manage the store or you own the store?
· Answer: Manage and both, both.
· Question: And where’s that situated?
· Answer: It’s in the city here.
· Question: In the CBD?
· Answer: CBD, yes.
· Question: And how long have you been there?
· Answer: Three years. It gives like living expense, sometime travel and if I need any extra I will ask my parents.
There was no further questioning, nor was any further information provided by the first applicant in relation to his involvement with the convenience store. There is no obligation on the Tribunal to give an applicant a running commentary on the matters that the Tribunal sees of concern, in order for the first applicant to have the opportunity to provide additional evidence to address these concerns. The onus of proof is on the first applicant. It is also trite to say that there is no general obligation on the Tribunal to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]).
Jurisdictional error may arise in a case where there is an obvious enquiry about a critical fact, the existence of which can be easily ascertained. The Court does not see this issue as being a critical fact, given it was simply a matter that went into the overall evaluation of whether or not the first applicant was a genuine temporary entrant. At paragraph 22 of its decision, the Tribunal noted that the first applicant did not claim to have any assets of financial ties in Jordan, other than the property and assets of his parents. The Tribunal was not satisfied that the first applicant’s family and economic ties in his home country, acted as a significant incentive for him to return to his home country.
The Court is satisfied that the conclusion arrived at by the Tribunal in this regard, was within the legitimate bounds of decisional freedom of the Tribunal and that it cannot be said that it was either legally unreasonable, or lacked an evident and intelligible justification. The Court agrees with the first respondent that essentially, the complaint by the first applicant asks the Court to engage in impermissible merits review. Further, the Court does not see this particular issue as being dispositive of the first applicant’s claim. Rather, it was simply a matter which went into the overall mix as to whether or not the first applicant was a genuine temporary entrant. Ground one is dismissed.
Ground two complains that the Tribunal committed jurisdictional error by making a finding of fact that was legally unreasonable by relying upon the first applicant’s previous application for a protection visa, as evidence of his intention to seek to permanently remain within Australia. Direction No.69 of the Regulations requires the Tribunal to consider the first applicant’s migration history.
At paragraph 25 of its decision, the Tribunal noted that it had asked the first applicant about his previous visa applications in Australia. The first applicant confirmed that he had asked for a protection visa in 2012, due to circumstances in Jordan, pertaining to the Arab Spring. The Tribunal noted that this application indicated that the first applicant, in the past, had wished to remain in Australia permanently. The first applicant claimed that this was not the case and it was just a temporary situation with respect to the circumstances in Jordan, which applied at that time but no longer applied. The matter that was of concern to the Tribunal however, was that after the first applicant’s initial application for a protection visa was refused, he sought to appeal to the then RRT. The first applicant claimed he was not responsible for persisting with the review and that his former migration agent had persisted with the review, despite his instructions to withdraw. The Tribunal was not satisfied that the matter would have proceeded to review before the RRT, without the instruction or agitation of the first applicant. The Court is satisfied that this is a matter that the Tribunal was reasonably able to take into account when assessing the overall credit of the first applicant.
Critical however, to the Courts mind, is the sentence at the end of paragraph 26 of the Tribunal’s decision, when considering the totality of the first applicant’s migration history. The Tribunal said the following:
The Tribunal did not consider that these matters of themselves weighed against the grant of the visa and did not attribute them any weight
Counsel for the applicants suggested that those words only applied to the matters covered in paragraph 26 of its decision and did not apply to paragraph 25 of the Tribunal’s decision. It was submitted that, to apply these words to both paragraphs impermissibly strained the language of the Tribunal’s decision. Such a conclusion however, would be one that looks to read the Tribunal’s decision with “too keen an eye for error’” (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]).
The most critical aspect of the Tribunal’s decision, is contained at paragraphs 27 to 29, where it sums up its reasons for findings that the first applicant does not generally intend to stay in Australia temporarily. The first applicant’s previous migration history, including the matters referred to above, do not feature in that summation, and the Court is not satisfied it was dispositive. No jurisdictional error is made out.
If the Court is wrong in the conclusions that it has come to, in respect of the individual grounds of appeal set out above, the Court notes that the submissions of the first respondent that these errors were not material in the sense that, had the Tribunal not made the finding of fact, this could have realistically resulted in the Tribunal coming to a different conclusion (see Saini v Minister for Immigration and Border Protection (2016) 245 FCR 238 at [30]). The Court accepts this submission.
The Court is also satisfied that they would not have made a difference, given that the first applicant, as at the time of the decision before the Tribunal, did not satisfy cl 500.211(a) of the Regulations, in that the first applicant was not enrolled in a course of study.
That matter of itself was enough for the Tribunal to have affirmed the decision of the delegate. The Court rejects the first applicant’s submission, that if the Court were to find in favour of the applicants and remit the matter back to the Tribunal, that the issue could be cured by further evidence. The Court is of the view that enrolment is a condition precedent. That condition precedent was not met.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 1 May 2020
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