Arachchi v Minister for Immigration

[2020] FCCA 1610

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARACHCHI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1610

Catchwords:
MIGRATION – Show cause – application for student (Temporary) (Class TU) (Subclass 500) visa – whether applicant a a genuine temporary applicant for entry and stay as a student – application for judicial review dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13(1)

Migration Act 1958 (Cth), ss.359AA, 360, 360A

Migration Regulations 1994 (Cth), sch.2, cl.500.212(a)

Cases cited:

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: KAUSHIKA VIDUSHAN JAGODA ARACHCHI

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 929 of 2019

Judgment of: Judge Jarrett

Hearing date: 8 April 2020

Date of Last Submission: 8 April 2020

Delivered at: Brisbane

Delivered on: 17 June 2020

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Sparke Helmore

The second respondent entered a submitting appearance.

ORDERS

1. The application filed on 28 October, 2019 be dismissed pursuant to r.44.12(1) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 929 of 2019

KAUSHIKA VIDUSHAN JAGODA ARACHCHI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent made on 24 September, 2019 which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa.

2. This application has been listed before me for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). If the application does not raise an arguable case for the relief claimed, the Court may order its dismissal: r.44.12(1). On such a hearing, the applicant is confined to the relief sought and the grounds mentioned in the application for judicial review: r.44.13(1).

3. On 4 December, 2019 a registrar made directions requiring the parties to file written submissions in preparation for this hearing.  The applicant has not filed any written submissions.  I have written submissions from the first respondent to which I have had regard.  When the matter came before me for hearing, the applicant made oral submissions which were directed, more or less, towards the merits of the second respondent’s decision.  The first respondent relied upon the written submissions that had already been delivered.

Background

1. The applicant is a citizen of Sri Lanka.  He first arrived in Australia on 29 January, 2011 as the holder of a Student (Temporary) (Class TU) (Subclass 572) visa. His stay was extended through the grant of a Graduate Work (Subclass 485) visa on 17 September, 2013 and a Student (Subclass 573) visa on 29 April, 2015.

2. On 15 March 2018, the day on which his subclass 573 visa expired, he applied for a Student (Temporary) (Class TU) (Subclass 500) visa in order to complete a Diploma of Leadership and Management.  It is that visa application that is the subject of this review.  The course completion date for the Diploma of Leadership and Management was 30 December 2018.

3. On 5 May 2018, a delegate of the first respondent refused to grant the visa on the basis that the applicant did not meet cl.500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily. The applicant applied to the second respondent on 25 May, 2018 for review of the delegate’s decision.

4. Because it could not decide the review in the applicant’s favour on the papers before it, the second respondent invited the applicant to attend a hearing on 13 September, 2019.  He attended that hearing and had the assistance of a migration agent.

5. On 24 September, 2019, the second respondent affirmed the delegate’s decision. It recorded that the issue on review was whether the applicant met cl.500.212 of the Regulations as a genuine temporary applicant for entry and stay as a student. The second respondent noted that in considering that issue, it must have regard to the factors contained in Ministerial Direction 69 but also recorded that the factors specified in the direction should not be used as a checklist but rather were intended only to guide decision-makers when considering the applicant’s circumstances as a whole. This approach by the second respondent was entirely correct.

6. In accordance with s.359AA of the Migration Act 1958 (Cth), the second respondent put to the applicant information contained in the Provider Registration and International Student Management System database that recorded his enrolment history. It provided that information to him both orally and in a document which summarised his enrolments. He was provided with the opportunity to comment on that information.

7. The second respondent found that:

   a)the applicant provided reasonable reasons for not undertaking the proposed course in Sri Lanka;

   b)in Sri Lanka he had family ties, assets, an expected inheritance, and a business he planned to establish. However, given his length of time in Australia, his intentions when travelling to Australia, and the financial support he had received from his family since arriving in Australia, the Tribunal found that he did not have a significant incentive to return to Sri Lanka;

   c)his economic circumstances as a whole were a significant incentive not to return to Sri Lanka;

   d)there was no relevant political or civil unrest in Sri Lanka, nor did he have any unmet military service obligations;

   e)there was no relevant evidence of his circumstances relative to others in Sri Lanka;

   f)his social and emotional connections were a strong incentive to remain in Australia;

   g)the visa was being used for the primary purpose of maintaining the applicant’s ongoing residence in Australia due to his pattern of enrolment, the timing of his visa application, unreasonable academic progression, periods of non-enrolment and failure to use any of the qualifications he had attained thus far;

   h)he had a good knowledge of living in Australia and of the proposed course;

   i)the proposed course was consistent with his existing qualifications but represented a regression from previous enrolments;

   j)his previously attained qualifications and experience meant that he could leave Australia now without undertaking the proposed course and still achieve his stated career objective;

   k)his projected income in Sri Lanka was less than his current earnings in Australia;

   l)he had not applied for other visas in Australia or other countries, nor had he been refused any visa applications or had any visas cancellations; and

   m)he had not travelled to other countries besides Australia and Sri Lanka.

8. Based on those matters, the second respondent was not satisfied that the applicant intended genuinely to stay in Australia temporarily. He did not meet cl.500.211(a) of Schedule 2 of the Regulations. Accordingly, the delegate’s decision was affirmed.

9. The application for review filed by the applicant in this Court relies upon three grounds of review.  They are in the following terms:

   1. The Second Respondent failed to provide natural justice to the Applicant which is an error of law;

   2.  The Second Respondent failed to afford Procedural Fairness to the Applicant as the Second Respondent misunderstood the explanation of the applicant;

   3. The Second Respondent failed to afford Procedural Fairness to the Applicant as the Second Respondent failed to take relevant information into consideration.

10. These grounds are devoid of any particularity and have no content.  On that basis alone, the application should be dismissed.  However, an examination of the second respondent’s reasons and the procedures leading to its hearing with the applicant, with a focus upon the general grounds of review relied upon by the applicant, reveal no error.

11. By ground one, the applicant argues that the Tribunal “failed to provide natural justice to the applicant which is an error of law.” However, no failure to afford the applicant procedural fairness, or natural justice, is apparent from the materials before the Court. The second respondent demonstrably complied with the procedural fairness obligations imposed on it by Division 5 of Part 5 of the Act. The applicant was invited to attend a hearing in compliance with ss.360 and 360A of the Act. The applicant attended the hearing with the assistance of his representative. The applicant was on notice from the delegate’s decision and the second respondent’s discussion at the hearing that the determinative issue on the review was whether the applicant was a genuine temporary applicant for entry and stay as a student and thereby met cl.500.211 of the Regulations. Moreover, the applicant sought and was granted an opportunity to make post-hearing submissions which were made on 20 September, 2019. The submissions were made in response to the PRISMS record provided by the second respondent to the applicant on the day of the hearing. The submissions explained that the applicant believed that there was an error in the record that showed an incorrect cancellation of a confirmation of enrolment. The second respondent considered this written submission at [24] of its reasons and noted that information contained within it was inconsistent with information provided by the applicant at the oral hearing.

12. The second respondent discharged its obligation to put information to the applicant pursuant to s.359AA of the Act at the hearing. The second respondent was concerned about the applicant’s pattern of enrolment and his academic progression. The PRISMS record formed part of the basis for that concern. The second respondent put that record to the applicant for his comment. The second respondent noted:

    12. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of the applicant's enrolment records from the Provider Registration International Student Management System (PRISMS) database. For completeness, the Tribunal provided the applicant with a copy of the present summary of enrolment. The Tribunal explained to the applicant the relevance of the records that are reviewed before the Tribunal. The Tribunal explained the consequences of relying on the information and confirmed the applicant understood the consequences of the information being relied upon.  The Tribunal offered the applicant an opportunity to seek an adjournment to consider the information, and comment on and respond to the information. The applicant did not seek an adjournment and elected to respond to the information during the course of the hearing.

13. Subsequently, and as I have already indicated, the applicant made a further written submission to the second respondent addressing certain aspects of the PRISMS record.  The applicant took no issue with the accuracy of what was recorded by the second respondent in its reasons for decision about this matter.

14. There is nothing in ground one of the application.

15. The explanation referred to in ground two of the application and which the second respondent allegedly misunderstood is not identified by the applicant either in his application or in his oral submissions.  But it is tolerably clear from reading the second respondent’s reasons for decision that the relevant explanation is that contained within the post-hearing written submission made by the applicant’s representative.  There is nothing that suggests that the second respondent did not properly understand that explanation or misinterpreted it in some way.

16. Further, as the first respondent submits, the fact that the second respondent misunderstood some aspect of the applicant’s evidence will not, without more, lead to a finding of jurisdictional error.  An error of fact based on a misunderstanding of evidence is not a jurisdictional error if the error does not mean that the Tribunal has not considered the applicant’s claims: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28].

17. There is nothing in this ground of review.  

18. Ground three is also without merit. The applicant does not identify any information that he contends should have been taken into account, but was not. I accept the first respondent’s submission that the second respondent correctly identified the issue in the review as being whether the applicant met cl.500.212(a) of the Regulations and that in determining that issue it was required to assess the evidence against the factors in Direction 69. Having undertaken that assessment, it was a matter for the second respondent to assign the weight it considered to be appropriate to each of the factors in Direction 69.

19. Finally, the first respondent submits that even if the applicant could demonstrate jurisdictional error in the second respondent’s decision, given that the applicant applied for the visa to study a course which was intended to be completed by 30 December, 2018 the Court should exercise its discretion not to grant the relief the applicant seeks.  I accept that submission.  To grant relief would be futile in the circumstances.

Conclusion

1. Accordingly, the application does not raise an arguable case for the relief claimed and ought to be dismissed under r.44.12 of the Rules, with costs fixed in the sum sought by the first respondent.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 June 2020.

Associate:

Date: 17 June, 2020