Alejo v Minister for Immigration
[2020] FCCA 2432
•1 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALEJO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2432 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether Tribunal erred in determining that the applicant was not a genuine temporary entrant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), cl.500.212 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| First Applicant: | DINDO ALEJO |
| Second Applicant: | MARIA NADINE ALEJO |
| Third Applicant: | DIANNE ANGELA ALEJO |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 506 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 31 August 2020 |
| Date of Last Submission: | 31 August 2020 |
| Delivered at: | Perth |
| Delivered on: | 1 September 2020 |
REPRESENTATION
| Applicants: | The first applicant appeared in person and on behalf of the second and third applicants |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 506 of 2019
| DINDO ALEJO |
First Applicant
| MARIA NADINE ALEJO |
Second Applicant
| DIANNE ANGELA ALEJO |
Third 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 citizens of the Philippines. The first applicant and the second applicant are husband and wife respectively. The third applicant is their child (Court Book (“CB”) 1-51). The first and second applicant have a second child who is not a party to these proceedings.
The applicants arrived in Australia on 13 July 2012 on a student visa. They were granted two further student visas (CB 62).
On 8 March 2018, the first applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”). The intended course of study was a Diploma of Nursing. The second and third applicants were included in the application as members of the migrating family.
On 17 April 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa. The delegate found that the first applicant was not a “genuine temporary entrant” for the purpose of cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”). As the first applicant failed to satisfy the requirements of the visa, the second and third applicant were also denied a visa (CB 53-58).
On 1 May 2018, the first applicant applied for review of the delegate’s decision in the Administrative Appeals Tribunal (the “Tribunal”) (CB 68-78).
On 17 May 2019, the applicants were invited to provide information to the Tribunal concerning their current confirmation of enrolment and whether they were a genuine applicant for entry and stay as a student (CB 83-85).
On 13 June 2019, the applicants responded to the Tribunal’s invitation and provided further information in support of the visa application (CB 92-105).
On 8 August 2019, the applicants attended a hearing before the Tribunal. They were assisted by a migration agent (CB 122-124).
On 27 November 2019, the Tribunal affirmed the decision not to grant the applicants the visa (CB 125-138).
On 31 December 2019, an application for judicial review of the Tribunal’s decision was filed in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To succeed, the applicants must establish that the Tribunal fell into jurisdictional error in their decision.
Tribunal’s Decision
The Minister’s outline of written submissions filed 7 August 2020 provides an accurate summary of the Tribunal’s decision. The Court adopts that summary as its own. With some amendments, it provides as follows.
The Tribunal began by providing a background to the application for review. This included an overview of the procedural history, identification of the type of visa under review, a summary of the delegate’s decision and confirmation of the hearing details (at [1]-[8]).
The Tribunal found that the issue before it was whether the first applicant was a genuine temporary entrant for the purpose of cl.500.212 of the Regulations (at [9]).
The Tribunal then set out the relevant provisions and factors for consideration as follows:
10. Clause 500.212 requires 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’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
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
11. In considering whether the applicant satisfies cl.500.212 (a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
• 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 for 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.
12. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal explained that the first applicant was 46 years old and lived in Australia with his wife and two children. The Tribunal found that the fact that the first applicant’s immediate family were living with him in Australia provided a significant incentive for the first applicant to remain in Australia (at [13] and [15]). It noted further that the first and second applicant were both working in Australia earning $1,000 and $500 per fortnight respectively (at [14]).
The Tribunal then referred to the fact that the first applicant had only returned to the Philippines once since arriving in Australia and that he had held numerous student visas during that time (at [15] and [18]).
The Tribunal also noted that, prior to coming to Australia, the first applicant was working as a teacher in the Philippines earning $1,800-$4,200 per year.
In light of this, and noting the first and second applicant’s employment history in Australia, the Tribunal determined that there was a strong economic incentive for the applicants to stay in Australia. This weighed heavily against granting the visa (at [16]-[17]).
Having referred to the first applicant’s evidence, the Tribunal found that the fact that the first applicant had property in the Philippines (being his “family home”) was not an incentive for the applicants to return as the first applicant’s sisters were managing the property and he had only returned to the Philippines once since arriving in Australia (at [19]).
The Tribunal then considered the first applicant’s stated career plan (i.e., to open a child care centre in the Philippines after he completes his studies in Australia in December 2019) and noted that the applicant had not provided details or specific plans about the child care centre (at [20]).
It was then noted that the first applicant had completed various courses (at [21]).
The Tribunal recorded the first applicant’s study history as follows (at [22]):
a)a Certificate III and Certificate IV in Aged Care;
b)a Certificate III and Certificate IV in Community Services Work;
c)a Diploma in Community Services Work;
d)a Certificate III in Education Support;
e)a Certificate III in Early Childhood and Education Care; and
f)a Diploma in Early Childhood and Education Care.
The Tribunal found that the first applicant had progressed well in all of the courses that he had registered and determined that this weighed in favour of the first applicant’s case (at [23]).
The Tribunal continued:
24. The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. Overall the Tribunal found the applicant’s testimony to be vague and unconvincing. The applicant has undertaken a lot of different courses and would appear to the Tribunal that he may be undertaking the studies simply to maintain ongoing residence in Australia. The Tribunal is concerned by the amount of time that the main applicant has been residing in Australia, being almost 7 years. The Tribunal considers that if the applicant did have a plan to pursue a career outside of Australia, then he could have already left Australia to implement the plan.
25. The Tribunal considers that the applicant’s present studies in the VET sector only marginally improve his employment prospects in the Philippines. The Tribunal considers that the applicant’s studies in the VET sector, and proposed further studies ,offer limited incremental value when considered alongside the qualifications and experience that he has gained in Australia particularly if he plans to go back to run a business in childcare.
26. The applicant has enrolled in low level courses and some of the Courses appear not to be consistent with the level of expertise required for him to open a child care centre. This matter causes the Tribunal serious concerns and significant weight is placed against the applicant in this regard and the concerns constitute evidence that the student visa programme is being used to circumvent the intentions of the migration programme
The Tribunal found that the completion of low level and inexpensive courses for seven years weighed against granting the visa (at [27]).
The Tribunal then noted that there was limited evidence in relation to the first applicant’s circumstances in the Philippines. The Tribunal did note, however, that there was evidence that the first applicant was involved in his local community in Australia and had friends in Australia. The Tribunal found that this was an incentive for the applicants to remain in Australia (at [28]-[29]).
The Tribunal found that the first applicant did not have to undertake military service and the Philippines was politically stable. These factors weighed in his favour (at [30]).
In light of all of the Tribunal’s considerations, the Tribunal determined that it was not satisfied that the first applicant intended genuinely to stay in Australia temporarily and, as such, did not meet the requirements of cl.500.212(a) (at [32]).
The Tribunal affirmed the delegate’s decision (at [34]).
Proceedings in the Court
The application for judicial review filed 19 August 2020 contains the following “grounds of review”:
1.The applicant has enrolled in low level courses and some of the Courses appear not to be consistent with the level of expertise required for him to open a child care centre. This matter causes the Tribunal serious concerns and significant weight is placed against the applicant in this regard and the concerns constitute evidence that the student visa programme is being used to circumvent the intentions of the migration programme
2.There is not a great deal of relevant evidence regarding the applicant’s circumstances in his home country relative to others in that country other than the evidence that his salary was low as a teacher when he lived in his home country.
3.The Tribunal finds that completing low level, inexpensive courses in a period of 7 years is not adequate academic progress and places weight against the applicant in this regard.
The applicants were given an opportunity to file an amended application, any affidavit evidence and any written submissions prior to the hearing. No further materials have been filed.
The materials before the Court are thus limited to the applicants’ application for judicial review, written submissions filed by the Minister on 7 August 2020, correspondence confirming service of the Court Book and the Minister’s submissions (marked as Exhibit 1) and a Court Book numbering 138 pages (marked as Exhibit 2).
The first applicant appeared before the Court without legal representation. He spoke on his own behalf and on behalf of the second and third applicants. A Filipino interpreter translated for the first applicant.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concerns he has with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicants, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant was asked to outline what he thought the Tribunal “did wrong”. In response, he explained (in effect) that he thought what he had given the Tribunal was “strong enough” but that the Tribunal disagreed. The first applicant stressed that he disagrees with the Tribunal’s decision and that he is “a genuine temporary entrant”.
Put simply, the first applicant’s oral submissions do no more than express disagreement with the Tribunal’s decision. The fact that the first applicant now feels that the Tribunal should “have come to a different conclusion” does not assist the applicants in relation to whether the Tribunal fell into jurisdictional error.
Consideration
To the extent that the first applicant’s oral submissions suggest that the Tribunal erred because the evidence he provided was “strong enough”, it is well accepted that the weight the Tribunal gives to evidence is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464. Here, there was nothing illogical or unreasonable in relation to the weight the Tribunal gave to the information before it. In effect, the applicants here seeks merits review.
In relation to the “grounds of review” as provided in the application for judicial review, the application only repeats [26]-[28] of the Tribunal’s decision. No “grounds” relevant to the issue of jurisdictional error are actually provided.
Noting that the applicants are not legally represented, the Court has considered for itself whether these paragraphs can be seen to identify any error or whether any other error arises on the face of the Tribunal’s decision: as per MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Arguably, the applicants are challenging the Tribunal’s consideration in relation to the paragraphs identified as grounds of review such that:
a)ground 1 (which is [26] of the Tribunal’s decision) is a reference to [12] of Direction 69;
b)ground 2 (which is [28] of the Tribunal’s decision) is a reference to [11(a)] and [9(b) and (c)] of Direction 69; and
c)ground 3 (which is [27] of the Tribunal’s decision) is a reference to [14(b)(iii)] of Direction 69.
Each of the matters considered by the Tribunal in [26]-[28] was a “relevant consideration”.
The applicants may also be suggesting that the logic underpinning these paragraphs is not sound. However, these paragraphs deal with distinct considerations under Direction 69. These were matters that the Tribunal was required to consider when determining whether it was satisfied that the first applicant met cl.500.212(a).
To the extent that the applicants are suggesting that the Tribunal’s conclusions are illogical, the Court does not agree.
Here:
a)the Tribunal referred to what it considered to be an inconsistency between the first applicant’s goal to start a child care centre and the courses he had studied at [26]. It was open for the Tribunal to determine that there was an inconsistency and attach weight to that finding as it did;
b)the Tribunal merely makes a statement of fact at [28]. It does not make a finding. It simply states that there is insufficient evidence upon which to draw a conclusion. There is no error in the Tribunal failing to make a conclusive finding in this regard; and
c)a finding (at [27]) that completing low level and inexpensive courses over a period of seven years is not academic progress is not a finding that no reasonable decision-maker could have come to. Contextually, this was entirely open on the evidence and entirely reasonable.
Before this Court the first applicant seemed to suggest that the Tribunal may have “discriminated” against him because of his age. He stressed that “education has no age limit”. Arguably, this raises a concern about bias.
In relation to any concerns about bias, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
There is nothing to suggest any actual or apprehended bias in the Tribunal’s consideration at [26]-[28], nor in the Tribunal’s decision as a whole. There is nothing to suggest that the first applicant’s age had any bearing on the Tribunal’s consideration. The Tribunal fairly and impartially evaluated all of the circumstances and information before it to come to a sound conclusion.
Any allegation of bias is dismissed.
The Court has been unable to identify any jurisdictional error arising from [26]-[28] of the Tribunal’s decision. Accordingly, grounds 1-3 are dismissed.
Otherwise
The Court has otherwise reviewed the Tribunal’s decision for error.
Read as whole, the Tribunal’s reasons were “sufficient unto this day” to explain why (having regard to the first applicant’s particular circumstances, the matters in cl.500.212(a) and the factors in Direction 69) it was not satisfied that the first applicant met cl.500.212(a): Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16. There is no error in the Tribunal’s approach in this regard.
It was not suggested that the Tribunal denied the applicants procedural fairness. Nonetheless, the Court has reviewed the materials before it and is not satisfied that any of the procedural fairness obligations in this matter have been breached. The applicants were afforded the opportunity to attend a hearing and they provided evidence and arguments at that hearing, they provided documents in support of their application to the Tribunal, they were on notice of the dispositive issue and the Tribunal approached the review fairly and impartially. No error arises in this regard.
Conclusion
The applicants have failed to identify any jurisdictional error in the Tribunal’s decision. The Court is otherwise satisfied that no jurisdictional error exists.
The application is, accordingly, dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 1 September 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Statutory Construction
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