BADHAN v Minister for Home Affairs
[2019] FCCA 1421
•15 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BADHAN & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1421 |
| Catchwords: MIGRATION – Refusal of Student Visa – whether Tribunal overlooked relevant facts and evidence – whether the applicant was given a fair hearing – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359, 360, 360A, 357A, 476, 477, 499. Pt.5, Div.5 Migration Regulations 1994 (Cth), cl.500.212, Sch.2 |
| Cases cited: AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 |
| First Applicant: | MOHANDEEP SINGH BADHAN |
| Second Applicant: | SUNITA BADHAN |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 359 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 15 May 2019 |
| Date of Last Submission: | 15 May 2019 |
| Delivered at: | Perth |
| Delivered on: | 15 May 2019 |
REPRESENTATION
| Applicants: | The first applicant appeared in person and on behalf of the second applicant |
| Counsel for the First Respondent: | Ms S Anicic |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The judicial review application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $6,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 359 of 2018
| MOHANDEEP SINGH BADHAN |
First Applicant
| SUNITA BADHAN |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
Introduction
By application filed in this Court on 3 July 2018, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 8 June 2018.
The Tribunal’s decision affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (the “Minister”) on 15 November 2016 to refuse to grant Student (Temporary) (Class TU) (Subclass 500) visas (the “visas”) to the applicants.
The applicants now seek judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show jurisdictional error on the part of the Tribunal.
Factual Background and Tribunal Decision
The Court has read the Court Book (“CB”) prepared for this hearing. It numbered 179 pages. The Court has also reviewed the Minister’s outline of submissions filed on 9 April 2019. The Court notes [3]-[14] in the Minister’s submissions. These paragraphs accurately summarise the factual background to this matter. Further, [19]-[22] accurately summarise the Tribunal’s decision. The Court adopts these summaries as its own. They provide, relevantly, as follows.
Factual Background
The first applicant is a citizen of India who arrived in Australia on 27 August 2009 on a Student (Temporary) (Class TU) (Subclass 572) visa (CB 52). The first applicant subsequently held a number of other student visas and a Temporary Graduate (Subclass 485) visa. The second applicant, his wife, is also an Indian citizen (CB 25).
On 27 August 2016, the applicants applied for student visas to the former Department of Immigration and Border Protection (CB 1-43).
On 15 November 2016, a delegate of the Minister refused to grant the applicants the student visas they were seeking. The delegate did so because it was determined that the first applicant did not satisfy the requirements of cl.500.212 of Sch.2 to the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the first applicant “genuinely intended to stay in Australia temporarily” (CB 50-54).
On 24 November 2016, the applicants lodged an application with the Tribunal seeking review of the delegate’s decision (CB 55-56).
On 13 April 2018, the applicants were invited to provide information in the form of a Request for Student Visa Information questionnaire, issued under s.359(2) of the Act. They were provided with a copy of Direction Number 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (“Direction 69”), issued under s.499 of the Act (CB 61-80).
On 26 April 2018, the applicants’ registered migration agent returned a completed questionnaire to the Tribunal (CB 81-91).
On 9 May 2018, the applicants were invited to attend a hearing at the Tribunal and were once again provided with a copy of Direction 69 (CB 92-101).
On 1 and 6 June 2018, the applicants provided further documents to the Tribunal (CB 105-156).
On 8 June 2018, the applicants appeared before the Tribunal to give evidence and present arguments (CB 157-161).
On that same day, the Tribunal handed down an oral decision affirming the delegate’s decision to refuse to grant the applicants student visas (CB 162-165).
On 19 June 2018, the first applicant wrote to the Tribunal requesting written reasons for the decision (CB 166).
Written reasons were prepared on 27 June 2018 and given to the applicants on the following day (CB 172 and 179).
On 3 July 2018 (within the 35 days provided in s.477 of the Act), the applicants made an application in this Court for judicial review of the Tribunal’s decision.
Tribunal Decision
The core issue before the Tribunal was whether the first applicant satisfied the criteria in cl.500.212 of Sch.2 to the Regulations. The central question to be assessed was whether he was a genuine temporary entrant.
One of the primary criteria for a Subclass 500 (Student visa) was cl.500.212, which at the time of the Tribunal decision, provided 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 assessing cl.500.212, a decision-maker is bound to apply Direction 69.
Direction 69 outlines factors that decision-makers should have regard to when considering cl.500.212(a). For example, Direction 69 provides a list of factors that may be relevant to considering the applicant’s circumstances in their home country, the applicant’s potential circumstances in Australia and the value of the course to the applicant’s future, as well as the applicant’s immigration history and any other relevant information provided by the applicant or otherwise available to the decision-maker.
The Tribunal referred to evidence that was submitted by the applicants at [6]-[7] (CB 176).
The Tribunal then noted that the first applicant undertook an Interactive Digital Media Diploma, a Certificate III in Printing and Graphic Arts and a Diploma of Management.
The Tribunal also noted the first applicant’s evidence that the skills that might arise from these courses in those courses were not suitable for ongoing employment given the current economic environment and that he had decided to undertake a nursing career instead.
The Tribunal also noted that the first applicant had commenced a Diploma of Nursing and applied for the student visa in respect of it but that this was refused by the delegate (CB 176-177 at [8]).
The Tribunal considered the factors in Direction 69 and noted the first applicant’s circumstances as follows:
a)the Tribunal considered that the first applicant’s father, mother, brother and sister resided in India and noted that the first applicant had contacted them regularly. It also noted the first applicant’s trips to India. The Tribunal also observed that the first applicant now lives in Australia with his wife, the second applicant (CB 177 at [10]-[11]);
b)the Tribunal noted that the first applicant agreed that he had not studied from December 2016 until his current enrolment in the Advanced Diploma of Community Sector Management, which was due to commence in July 2018. The Tribunal also noted that the certificate of enrolment for that course was obtained after the Tribunal invited the applicants to a hearing. The Tribunal also noted the first applicant’s evidence that his migration agent had told him that he would not succeed at the Tribunal without being enrolled in a course (CB 177 at [11]-[12]);
c)the Tribunal referred to the first applicant’s evidence that between December 2016 and July 2018 he was working around 40 hours a week at Barrett’s Bread and 17.5 hours per week at Woolworths. The Tribunal also noted that the first applicant had been in Australia for 9 years and had not returned to India to undertake work. The Tribunal then contrasted the disparity in incomes between what the first applicant could earn in India with a Bachelor of Nursing to his name compared with what he currently earned in Australia and considered that the amount earned in Australia served as a disincentive for the applicant to return to India (CB 177-178 at [12]-[14]); and
d)the Tribunal was concerned that the first applicant was studying primarily for the purposes of obtaining a further visa, rather than because the study had a distinct value to a future plan outside of Australia (CB 178 at [15]).
Suffice it to say, the Tribunal was not persuaded that the first applicant intended genuinely to stay in Australia temporarily.
Given this finding, the Tribunal found that the criteria in cl.500.212 of Sch.2 of the Regulations regarding being a genuine temporary entrant was not met.
The Tribunal, accordingly, upheld the delegate’s decision.
Proceedings in this Court
The first applicant appeared unassisted in his judicial review application before this Court. He appeared on behalf of his wife.
The applicant appeared with the assistance of an interpreter but indicated that he would not require the assistance of an interpreter unless he felt confused about the law or did not fully understand what the Court was saying. Ultimately, the interpreter’s services were not required.
A Registrar of this court made orders on 29 August 2018. These orders gave the applicants an opportunity to file an amended application, any supporting affidavits and an outline of submissions prior to today’s hearing. The applicants did not file any further documents.
The applicants raise 7 “grounds” of review in their application. Those grounds, without amendment, provide as follows:
1. The Department refused the application because it was not satisfied that the applicant met the criteria to be a genuine temporary entrant for the grant of a student visa, and so did not satisfy clause 500.212 of schedule 2 of the Regulations.
2. Decisions in respect of genuineness to stay in Australia temporarily are made in accordance with Ministerial Direction Number 69, which is entitled "Assessing the Genuine Temporary Entrant Criterion for Student and Student Guardian Visa Applications", and that Direction sets out the factors that must be taken into account when assessing the criterion for student visa applications.
3. The member of the AAT has overlooked the facts and not given me a fair hearing.
4. Certificate of enrolment, or Confirmation of Enrolment, in an Advanced Diploma of Community Sector Management was attached with the application but was ignored by the tribunal member considering that was not mentioned in the Request for Student Visa Information questionnaire.
5. The fact that ecoe (sic.) was valid and the fact that a fair hearing has not been given to me confirms that there is a jurisdictional error made by the member of the Administrative Appeals Tribunal.
6. I would request the registrar to set aside the decision made by the Administrative Appeals Tribunal.
7. The respected registrar should quash the decision made the AAT and remit the decision to the AAT for reconsideration.
The applicants’ grounds of review are vague. A number of the grounds simply narrate the factual history of the Tribunal proceedings, rather than articulating a claim of jurisdictional error.
This puts the respondents at a disadvantage as it makes it difficult for them to gauge what, precisely, the applicants think the Tribunal did wrong.
Historically in this Court, a failure to particularise has been seen to provide a basis for each of the grounds to be dismissed: AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]-[6] per Logan J.
Despite this, the Court is mindful of the decision of Colvin J in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8], wherein His Honour commented that the consequences of a failure to particularise will depend upon the circumstances. The Court accepts that this is now the preferred approach.
Although this matter does not relate to an application for a protection visa, the Court is mindful that the applicants are not legally represented.
The Court explained to the first applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, 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]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]-[17]; 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 to the first applicant that this Court cannot review the merits of the Tribunal decision or grant the visa the applicants seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it has on the basis of the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272.
The first applicant was asked to outline what he thought the Tribunal “did wrong”. His response was somewhat confusing but this is not surprising given the complexity of the student visa process and the law in relation to jurisdictional error generally.
Despite the inherent complexity of proceedings of this sort to an unrepresented applicant, the first applicant did his best to explain his position. The Court thanks him for his efforts in that regard.
In effect, the first applicant seemed to suggest that he was disadvantaged because he did not initially satisfy the English language requirements. The delay in the time it took for him to satisfy those requirements meant that by the time he did so, he was unable to register in his chosen course – in effect, because the visa that he sought had lapsed and he no longer had a visa for the purposes of study in Australia.
Consideration
It is arguable that what the applicants are asking the Court to undertake is a merits review in the hope that the Court will ultimately come to a different conclusion than the one reached by the Tribunal. In effect, the applicants would like the Court to review the evidence that was before the Tribunal and give them the student visas that they seek. The Court cannot undertake a review of that sort: Wu Shan Liang at 272.
On another level, and noting what the first applicant said orally at the hearing for this matter, the Court agrees with the Minister that the applicants appear to have three main concerns in relation to what occurred at the Tribunal level:
a)the Tribunal overlooked the facts by ignoring a confirmation of enrolment in an Advanced Diploma of Community Sector Management;
b)the Tribunal did not give the applicants a fair hearing; and
c)relevant material in relation to the English language requirements was overlooked.
Whether the Tribunal overlooked the facts
It cannot be said that the Tribunal ignored or overlooked the first applicant’s confirmation of enrolment (“CoE”) in the Advanced Diploma of Community Sector Management.
The Tribunal specifically referred to the CoE at [7], [11] and [12] of the decision. Further, the Tribunal actively engaged in considering the CoE in the context of the genuine temporary entrant criteria in cl.500.212.
In this regard, the Tribunal noted the following:
a)the CoE was obtained after the Tribunal invited the applicants to hearing and after a period of some 18 months of the first applicant not being enrolled in any course (CB 177-178 at [11], [12] and [15]);
b)the Tribunal was concerned that the course had no distinct value to a future plan outside of Australia (CB178 at [15]); and
c)the Tribunal was concerned that the first applicant was using the course to prolong his and his wife’s stay in Australia (CB 178 at [15]).
The Tribunal did not consider that the CoE supported a conclusion that the first applicant satisfied cl.500.212. The weight that was attached to the CoE was a matter for the Tribunal as part of its fact finding function. The Court is of the view that that determination was open to it in the circumstances: Lee v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 464 at [27]; Vidiyala v Minister for Home Affairs [2018] FCA 1973 at [29].
This ground cannot be established.
Failure to give a fair hearing
The Court agrees with the Minister that the applicants’ claim that they were not given a fair hearing is taken to be an allegation that they were not afforded procedural fairness.
In this regard, the Court notes as follows.
The applicants were entitled only to the rights afforded to him under Pt.5, Div.5 of the Act.
Division 5 of Part 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters the Tribunal deals with: s.357A of the Act.
On the basis of the materials before the Court, the Court is satisfied that:
a)the Tribunal exercised its power under s.359(2) of the Act to invite the applicants to give information by way of the Request for Student Visa Information questionnaire and the applicants did provide further information;
b)the Tribunal also fulfilled the formal and substantive requirements of ss.360 and 360A of the Act in inviting the applicants to attend a hearing. It did so via a letter dated 9 May 2018. That letter alerted the applicants to the fact that the Tribunal was going to assess whether they intended genuinely to stay in Australia temporarily – the same issue that was before the delegate – and invited them to provide certain types of documents;
c)the applicants then provided further documents to the Tribunal on 1 and 6 June 2018 and appeared before the Tribunal on 8 June 2018 to give oral evidence;
d)the applicants were afforded a meaningful opportunity to give evidence and present arguments in relation to the issues in dispute. It is evident that from the Tribunal decision that the applicants gave evidence on a wide variety of matters (CB 176-178 at [6], [7] and [14]);
e)there is nothing to suggest there was any issue or matter that inhibited the applicants from partaking in, giving evidence to and putting arguments at the Tribunal hearing: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63 at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
f)there is nothing to suggest that the Tribunal did not act in accordance with the requirements of Pt.5 of the Act;
g)the complaint of denial of procedural fairness cannot be sustained; and, finally,
h)no bias (actual or perceived) is evident on the face of the record.
The Court is satisfied that there is nothing to suggest that the Tribunal did not act in accordance with the requirements of Pt.5 of the Act.
This ground, accordingly, fails.
Ignoring relevant evidence in relation to the “English language test”
In relation to the applicants’ concern (expressed orally in Court) that the Tribunal did not address the obstacles the first applicant faced in relation to his English language test, the Court notes that it does not have a transcript of the Tribunal hearing in evidence.
The Court does not doubt that the applicant is incredibly frustrated with what has occurred. Nor does it doubt that he found his experience with the Tribunal to be confusing. However, despite how sympathetic the Court might be to the applicants generally, it is clear that all of the first applicant’s relevant educational records were before the Tribunal. It is also clear, having assessed the Court Book, that the Tribunal assessed this evidence – in particular, as it relates to the issue of English proficiency. In that regard the Court notes, in particular, [11] of the Tribunal’s decision.
This issue was but one factor that went to the issue of genuineness – the “umbrella” under which the Tribunal made its determinations. The issue was determined and assessed. Ultimately, the Tribunal determined that there was no evidence that outweighed the Tribunal’s concerns as to genuineness.
Any concerns the applicants might have in this regard do not point to jurisdictional error. There is no evidence before the Court that the Tribunal overlooked relevant evidence or looked at irrelevant evidence in assessing whether or not the issue of genuineness had been satisfied.
On that basis, ground 3 also fails.
Conclusion
Overall, the Court is satisfied that the Tribunal considered the facts of the case, the legislation it was required to examine and all of the evidence provided by the applicants.
The Court is satisfied that the Tribunal’s decision to affirm the delegate’s decision was sound and open on the evidence before the Tribunal.
There is no jurisdictional error demonstrated by the grounds of review, or otherwise apparent in the Tribunal’s decision.
The applicants’ application for judicial review is, accordingly, dismissed.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 31 May 2019
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