Aujla v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 353
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aujla v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 353
File number(s): MLG 1187 of 2019 Judgment of: JUDGE J YOUNG Date of judgment: 24 April 2024 Catchwords: MIGRATION – Student (Temporary) (Class TU) Subclass 500 visa where Administrative Appeals Tribunal affirmed decision of first respondent to refuse to grant applicant visa as applicant did not satisfy cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal failed to consider evidence regarding applicants’ home ties to country – where certain grounds raised by applicant entirely unparticularised – found Tribunal had regard to all relevant considerations and prescribed matters – found no jurisdictional error on behalf of the Administrative Appeals Tribunal Legislation: Migration Act 1958 ss 474, 476, 499.
Migration Regulations 1994 (Cth) sch 2, cls 500.211, 500.212, 500.311.
Ministerial Direction 69 – ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’
Cases cited: Craig v South Australia (1995) 184 CLR 163
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 20 March 2024 Solicitor for the Applicants: Self-represented litigant Solicitor for the First Respondent: Mr Mintz of Clayton Utz Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1187 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANJOT SINGH AUJLA
First Applicant
GURLEEN KAUR AUJLA
Second Applicant
TARLEEN KAUR AUJLA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.Pursuant to r 11.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) (Rules), the First Applicant be appointed as litigation guardian for the Third Applicant, and the requirement to file any affidavit pursuant to r 11.10(2) of the Rules be dispensed with.
3.The Application filed 18 April 2019 is dismissed.
4.The First and Second Applicants pay the First Respondent’s cost fixed in the amount of $7,467.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG
INTRODUCTION
Before the Court is an Application filed on 18 April 2019, in which the applicants seek judicial review of a decision of the second respondent (Tribunal) dated 17 April 2019. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicants a Student (Temporary) (Class TU) Subclass 500 visa (Visa).
BACKGROUND
The applicants are citizens of India. The second applicant is the wife of the first applicant, and the third applicant is their child. The second applicant and third applicant are dependent applicants as members of the first applicant’s family unit.
On 2 June 2017, the first applicant (Applicant) lodged an application for the Visa.
On 28 November 2017, a delegate of the Minister refused to grant the Applicant the Visa as the delegate was not satisfied the applicant met cl 500.211 of sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The applicants applied to the Tribunal for review of that decision and, on 16 May 2018, the Tribunal remitted the Visa application to the Department of Home Affairs for reconsideration.
On 22 May 2018, a delegate (Delegate) invited the Applicant to provide further information with respect to cl 500.212(a) of sch 2 of the Regulations, amongst other things. Clause 500.212(a) of Schedule 2 of the Regulations requires the Delegate to be satisfied the applicant was a genuine temporary entrant (GTE criterion). The applicants provided supporting documents, including an undated Genuine Temporary Entrant statement from the Applicant.
On 26 July 2018, the Delegate refused to grant the Applicant the Visa as the Delegate was not satisfied the Applicant was a genuine temporary entrant, and therefore did not meet the GTE criterion.
On 9 August 2018, the applicants applied to the Tribunal for review of the Delegate’s decision.
On 1 March 2019, the Tribunal emailed the Applicant enclosing an invitation to attend a hearing on 28 March 2019. The hearing invitation stated the Tribunal would “assess whether you are a genuine applicant for entry and stay as a student” and attached a copy of Ministerial Direction 69 – ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, (Direction 69) made under s 499 of the Migration Act 1958 (Cth) (Act).
On 22 March 2019, the Applicant requested the hearing be postponed as he had just returned from overseas and was collating his documents. On 26 March 2019, the Tribunal informed the Applicant of its decision not to postpone the hearing.
On 28 March 2019, the applicant attended the hearing where he submitted:
·a completed GTE questionnaire form;
·written submissions; and
·supporting documents, including a confirmation of enrolment and letter of offer and acceptance for his enrolled course.
At the hearing on 28 March 2019, the Tribunal made an oral decision to affirm the decision of the Delegate to refuse to grant the Applicant the Visa. The Tribunal also gave oral reasons for its decision at the hearing.
Tribunal’s decision
On 17 April 2019, the Tribunal produced a written record of its oral decision. The Tribunal identified that the issue was whether the applicant was a genuine applicant for entry and stay as a student, as provided for in cl 500.212 of sch 2 of the Regulations.
In considering whether the applicant satisfied the GTE criterion, the Tribunal had regard to Direction 69. The terms of Direction 69 required the Tribunal to have regard to factors including the Applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the Applicant’s course to his future, and his immigration history.
In its decision, the Tribunal considered the following factors in its reasons for finding the Applicant did not satisfy the genuine temporary entrant criterion:
(a)the Applicant first arrived in Australia in April 2009, had been onshore on temporary visas for almost 10 years, and had spent only 116 days outside of Australia during that period;
(b)noted the Applicant had completed a series of subjects with a great deal of repetition and overlap, such that the Tribunal was not satisfied there was evidence of academic progression in the Applicant's study history;
(c)accepted that the Applicant’s family in India is relatively affluent and he has a comfortable financial environment back in India, but also was not satisfied he has sufficient incentive to leave Australia upon completion of his studies, having found his immediate family is in Australia, his daughter was born in Australia and has spent most of her life in Australia.
Having regard to the Applicant’s circumstances and to Direction 69, the Tribunal was not satisfied the Applicant intended genuinely to stay in Australia temporarily, and found that the Applicant did not meet cl 500.212 of sch 2 to the Regulations, and affirmed the decision not to grant the Visa.
The Tribunal further found that, as the Applicant did not meet the criteria for the grant of the Visa, the second and third applicant did not satisfy cl 500.311 of sch 2 of the Regulations, and it therefore affirmed the decision to refuse to grant the Visa to the dependent applicants.
APPLICATION FOR JUDICIAL REVIEW
The applicants applied for judicial review of the Tribunal’s decision on 18 April 2019.
The Application contains the following grounds for judicial review (without amendment):
1.As per the clause 500.212 I do satisfy the criteria of genuine temporary entrant criterion of studying here, I have specifically finished the AQF study in relevant field and also I hold confirmation of enrolment to accomplish my study plan successfully.
2.As per the Ministerial Direction 69, I do have evidence to substantiate the claims of tie ups with my home country which have not been considered by the presiding member.
3.As per section 499 of the Migration Act my past immigration history has not been well considered by the Member and I never breached any of the visa conditions.
4.Please grant me a chance to seek judicial review to support review application of my refusal given by the Review Member.
An affidavit annexing a copy of the Tribunal’s decision was also filed in support of the Application.
The applicants were not legally represented at the time of filing the Application, however became legally represented on 4 October 2021.
The Minister filed a Response on 13 May 2019. The Response sought orders that the Application be dismissed and orders as to costs on the ground that the Tribunal’s decision is not affected by jurisdictional error.
Orders were made on 20 December 2023 (20 December Orders) listing the Application for hearing and for the Applicant to file and serve written submissions, any additional evidence and any Amended Application by 21 February 2024. Orders were also made for the Minister to file written submissions, a list of authorities and any additional evidence by 6 March 2024.
On 20 December 2023, a notice of listing, attaching a copy of the 20 December Orders, was sent to the applicants’ legal representative and the Minister’s legal representative.
The Applicant did not file any material by 21 February 2024 in accordance with the 20 December Orders, or at all.
The Minister filed written submissions and a list of authorities on 6 March 2024 in accordance with the 20 December Orders.
On 12 March 2024, an email was sent to the applicants’ legal representative and the Minister’s legal representative advising of details of the hearing, including the court room allocation.
On 13 March 2024, a Notice of Withdrawal of Lawyer was filed by the applicants’ representative. On the same date, the applicants filed a Notice of Address for Service indicating they were now self-represented.
On 15 March 2024, a further email was sent to the Applicant and the Minister’s legal representative again advising of details of the hearing.
HEARING
The hearing took place on 20 March 2024.
At the hearing the Applicant was invited to elaborate on the grounds of review contained in the Application. In particular, the Applicant was invited to identify:
·what evidence the Tribunal failed to consider in relation to ties to his home country as asserted in Ground 2; and
·which aspects of his immigration history had not been considered by the Tribunal as asserted in Ground 3.
In response, the Applicant said that the Tribunal had failed to consider that his mother had a business in India and that the Tribunal did not consider that prior to 2013 he had returned to India on a number of occasions.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
The GTE Criterion and Direction 69
Clause 500.212 of Schedule 2 of the Regulations provides 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.
In accordance with s 499 of the Act, Direction 69 sets out the factors that the decision maker should have regard to when assessing the GTE criterion for student visa applications.
The preamble to Direction 69 provides as follows:
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a. the applicant’s circumstances; and
b. the applicant’s immigration history; and
c.if the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant; and
d. any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Direction 69 states that an application for a Student visa should be refused if, after weighing up “the applicant’s circumstances, immigration history and any other relevant matter” the decision maker is not satisfied the applicant genuinely intends a temporary stay in Australia.
In relation to an applicant’s circumstances, insofar as is presently relevant, Direction 69 provides at paragraph 6 that the decision maker “should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia”.
Paragraph 9 of Direction 69 then sets out the factors the decision maker should have regard to when considering an applicant’s circumstances in their home country. Relevantly, it provides that decision makers should have regard to “the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country”.
In relation to an applicant’s immigration history, insofar as is presently relevant, Direction 69 provides at paragraph 14 that the decision maker should have regard to:
·if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
·the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification.
CONSIDERATION
Ground 1 – satisfaction of GTE criterion
By Ground 1, the applicants assert that the Applicant satisfied the GTE criterion, finished “AQF studies in relevant field” and held a confirmation of enrolment.
Insofar as Ground 1 asserts that the Applicant satisfied the GTE criterion, that assertion merely takes issue with the merits of the Tribunal’s decision. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
With respect to the assertion that the Applicant had finished “AQF studies in relevant field”, this was not in dispute. The Tribunal acknowledged at paragraphs [7] and [14] of its decision that the Applicant had completed a variety of courses at Certificate and Diploma level in the almost 10 years that he had been in Australia on temporary visas. However, the Tribunal noted there had been a high degree of repetition and overlap between the vocational courses the Applicant has been studying while in Australia, and found that the Applicant’s current studies would add little value to his career goals and did not demonstrate genuine academic progress. In this context, the Tribunal noted that the Applicant had completed a Bachelor of Arts degree prior to first arriving in Australia. The Tribunal also stated that the Applicant’s study history indicated that “he is using the Student visa program to maintain residence in Australia”.
Finally, as to the assertion that the Applicant held a valid confirmation of enrolment, this was also not in dispute before the Tribunal. The Tribunal acknowledged that in support of the review application the Applicant provided evidence of a current certificate of enrolment. The decision under review was whether the applicant satisfied cl 500.212 of sch 2 of the Regulations and was a genuine temporary entrant, not whether the applicant satisfied cl 500.211 of sch 2 of the Regulations and was enrolled in a course of study.
Accordingly, Ground 1 discloses no jurisdictional error on behalf of the Tribunal.
Ground 2 – failure to consider ties to home country
Ground 2 is a bare assertion that the Tribunal failed to consider evidence to substantiate the Applicant’s ties to his home country and is entirely unparticularised.
As set out above, at the hearing, the Applicant submitted that the Tribunal did not consider that his mother owned a business in India or that he had returned to India a number of times prior to 2013.
The Tribunal records at paragraph [9] of its decision that at the hearing it explained to the Applicant that it must have regard to the factors in Direction 69 and discussed with the Applicant his circumstances in his home country.
In its decision at paragraphs [9] and [10], the Tribunal summarised the Applicant’s evidence and submissions with respect to the Applicant’s circumstances in his home country. This included that the Applicant’s family is relatively affluent, his mother runs a family restaurant, his uncle also owns a restaurant, he owns property and other assets overseas, and that he has a “comfortable financial environment back in India and it is his intention to return there upon completion of his current studies”. Accordingly, contrary to the Applicant’s submissions at hearing, the Tribunal did consider his mother’s ownership of a business.
At paragraph [12] the Tribunal said:
The Tribunal finds that having his immediate family in Australia with him and given the length of time that they have remained in Australia plus the fact that the applicant's daughter was born in Australia and has spent most of her young life onshore, the Tribunal is not satisfied that the applicant has sufficient incentive to quit Australia upon completion of his studies.
The Applicant further confirmed with the Tribunal that there were no military, political, social, ethnic or religious reasons why he may not return to India. The Tribunal accepted that the Applicant comes from an affluent family with business interests in hospitality. At paragraph [17], the Tribunal noted it had taken into account the economic circumstances between the two countries.
Accordingly, the Tribunal did consider the Applicant’s ties to India, including his mother’s ownership of a business, and did not overlook or fail to consider the Applicant’s circumstances in his home country. However, in circumstances where the Applicant had been in Australia for almost 10 years, with very little time spent in India and where his wife and child (who was born in Australia) were also in Australia, the Tribunal was not satisfied that the Applicant had sufficient incentive to leave Australia upon the completion of his studies. That finding was open to the Tribunal on the evidence before it.
Ground 2 therefore discloses no jurisdictional error on behalf of the Tribunal.
Ground 3 – failure to consider immigration history
Ground 3 asserts that the Applicant’s immigration history has not been “well considered” by the Tribunal, and claims that the Applicant has never breached any of the Visa conditions.
As set out above, at the hearing, the Applicant submitted that the Tribunal failed to consider that he had visited India on a number of occasions prior to 2013.
For the reasons that follow, those submissions must be rejected.
It is clear that the Tribunal had regard to the Applicant’s immigration history in its decision. At paragraph [8] and [10] of its decision, the Tribunal notes that the Applicant first arrived in Australia in April 2009 and has been in Australia for almost 10 years on temporary visas. At paragraph [15] of its decision, the Tribunal accepted that the Applicant had “worked within his visa conditions” and at paragraph [16] that he has “completed all of his studies that he has been enrolled in”.
However, in considering the Applicant’s immigration history, the Tribunal gave greater weight to the Applicant’s study history showing a “great deal of repetition and overlap of subjects” and found on the evidence before it, the Applicant’s “major focus for staying onshore is for employment rather than for the pursuit and academic progression of his studies”.
At paragraph [21] of its decision, the Tribunal also gave weight to the Applicant’s submission that he has not applied for any other Visas in Australia. However, the Tribunal also noted that the Applicant had been in Australia for almost 10 years and had been “studying entirely within the vocational area with no evidence of academic progression.”
Accordingly, the Tribunal considered the Applicant’s immigration history and, in weighing his immigration history amongst other matters, concluded that the Applicant does not intend to genuinely stay in Australia on a temporary basis. The weight to be given to particular evidence is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] (Lee).
As to the Applicant’s submission that the Tribunal did not consider that he had returned to India on a number of occasions prior to 2013, at paragraph [8] of its decision the Tribunal identified that in the almost 10 years that the applicant had been in Australia he had “only spent 116 days outside Australia up to the date of the decision.” Accordingly, the Applicant’s travel to India prior to 2013 was necessarily considered by the Tribunal as it calculated the number of days he had spent outside of Australia. The Applicant did not suggest that the Tribunal’s calculation was incorrect.
Finally, should it be contended by the use of the phrase “well considered” in Ground 3 that although considered the Tribunal did not give sufficient weight to the Applicant’s immigration history, as previously set out, the weight to be given to particular evidence is a matter for the Tribunal: Lee
Ground 3 therefore discloses no jurisdictional error on behalf of the Tribunal.
Ground 4 – request for judicial review
By Ground 4 the applicants merely seek the Court undertake judicial review and do not assert any jurisdictional error by the Tribunal.
Ground 4 therefore discloses no jurisdictional error on behalf of the Tribunal.
It follows that the grounds advanced by the applicant do not disclose any jurisdictional error. The Application therefore cannot succeed.
DISPOSITION
For the above reasons, the Application must be dismissed.
The Minister seeks that the first and second applicants pay its costs in the amount of $7,467. I note that this is below the current scale amount. I shall order costs to be paid as sought.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 24 April 2024
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