Beejadhur v Minister for Immigration
[2020] FCCA 2238
•13 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEEJADHUR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2238 |
| Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal took into account an irrelevant consideration – whether Tribunal denied procedural fairness or was unreasonable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.347, 357A, 359, 359A, 359AA, 360, 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 |
| Applicant: | KUNAL RAI BEEJADHUR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 419 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 12 August 2020 |
| Date of Last Submission: | 12 August 2020 |
| Delivered at: | Perth |
| Delivered on: | 13 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 419 of 2019
| KUNAL RAI BEEJADHUR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Mauritius. He arrived in Australia as the holder of a student visa on 5 July 2014 (Court Book (“CB”) 43). On 1 August 2017, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”). He indicated that he was enrolled in a Certificate III in Carpentry (CB 31).
On 20 September 2017, a delegate for the first respondent (the “Minister”) refused to grant the applicant the visa (CB 36-43). The delegate was not satisfied that the applicant met cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the applicant was not “a genuine temporary entrant”.
On 21 September 2017, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 44-45).
On 15 March 2019, the Tribunal invited the applicant to provide further information that he was currently enrolled in a course of study and met the genuine temporary entrant criterion (CB 59-60).
The applicant provided further information within the period allowed (CB 61-69).
On 3 May 2019, the applicant’s migration agent forwarded written submissions and a number of supporting documents to the Tribunal (CB 80-115).
The applicant attended a hearing before the Tribunal on 6 May 2019 (CB 116-118).
On 26 July 2019, the applicant provided a further confirmation of enrolment to the Tribunal (CB 119-123).
On 19 September 2019, the Tribunal affirmed the delegate’s decision to not grant the applicant the visa (CB 127-142).
On 23 October 2019, the applicant filed his judicial review application in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must establish that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 16 pages long and spans 61 paragraphs.
The Tribunal began its decision by providing a brief overview of the type of visa the applicant had applied for. It then explains the basis of the delegate’s decision and confirmed that the applicant was represented. It then itemises the materials provided to the Tribunal by the applicant and the materials in the Departmental file (at [1]-[6]). The Tribunal noted that, following the hearing, the applicant provided a further confirmation of enrolment (at [8]).
The Tribunal then stated that the issue before it is whether the applicant genuinely intended to stay in Australia temporarily for study (at [10]). It set out the relevant provision and the matters in Direction 69, which provide as follows:
11. 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?
12. 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.
13. 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 then considered “the applicant’s education and his future” as follows:
a)it referred to the applicant’s schooling history in Mauritius and his “dream” of creating a tourist attraction (an “animal trail”) which caused him to apply to study animal related courses in Australia (at [14]-[16]). The applicant was unable to complete the first animal studies course. He felt the institution teaching him had failed him and he did not wish to ask for help (at [17]-[18]);
b)it noted the evidence that, on the advice of his teaching institution, the applicant enrolled in a fitness course which, while not related to animals, it was still related to his dream. The applicant thought that he probably should have done a carpentry course at that stage; however, as he needed to be enrolled, he continued with a fitness course (at [18]-[19]). The applicant completed a Certificate III and Certificate IV in Fitness in 2017 (at [20]);
c)it stated that the applicant indicated that even though he had finished his courses, he wanted to experience and explore more (at [21]-[22]). The applicant did not return to Mauritius as his parents told him to stay and travel and he did not want to disobey them (at [23]); and
d)it referred to the applicant then enrolling in a carpentry course because he had experience in this area back in Mauritius. He started the course in August 2017 and stated that he would finish in September 2019. However, this contradicted his certificate of enrolment which stated that the course would finish in August 2019.
The Tribunal then discussed the applicant’s reasons for choosing a carpentry course, as follows:
a)the applicant gave conflicting reasons as to why he wished to undertake a carpentry course. The Tribunal found that this made it difficult to determine what the applicant’s intentions were. This weighed against the Tribunal being satisfied that the applicant was a genuine student (at [26]);
b)the Tribunal noted that the applicant stated that he would be attractive to employers if he gained an Australian qualification in carpentry and he would be looking to work on a large construction project. The Tribunal referred to the applicant otherwise failing to mention his “dream” in any of the written materials before the Tribunal. Rather, the applicant referred to gaining experience to run his own business (while not identifying what that business was) (at [27] and [33]). The Tribunal added that the applicant had not suggested that he had any desire to gain any more qualifications after the carpentry certificate (and particularly, not in relation to construction management) (at [27]);
c)the Tribunal noted the applicant’s evidence at the hearing that Mauritius relies on tourism. The applicant stated that if he also studied carpentry, he would have an advantage over others in Mauritius, which would make him more competitive. He indicated that he knew that a qualification from Australia was highly valued in the building and construction industry and that most builders would be looking for an international qualification (at [28]);
d)when first asked what he would do after finishing the carpentry course, the applicant stated he would return to Mauritius and find a carpentry job (at [29]). He later confirmed that he would return after his studies (at [30]);
e)the Tribunal referred to the applicant’s evidence that carpentry would help him achieve his dream of making an animal trail as he could assist in building hotels that would be attached to the trail (at [31]). The Tribunal was not satisfied that the applicant had properly considered that the carpentry course was “viable and valid for his future”. The Tribunal considered the link between carpentry and the animal trail “tenuous” and noted that the applicant’s evidence differed. He told the Tribunal he would look for a job as a carpenter on his return and that an Australia qualification would make him more competitive, but also referred to his animal trail (which would not require him to be competitive or seek employment) (at [32]);
f)as the applicant’s evidence on his future goals was inconsistent, the Tribunal found it difficult to assess the value of the applicant’s course to his future. The Tribunal accepted that the applicant previously had exposure to carpentry and he may “have an idea” about creating an animal and fitness trail in Mauritius. However, referring to its finding that the connection between the carpentry course and the animal trail was tenuous, the Tribunal was not satisfied that the carpentry course had any value to the applicant’s prospects of setting up such a trail, or assisting in building hotels (at [34]);
g)the Tribunal referred to the applicant providing evidence after the hearing that he intended to study construction management. The Tribunal noted that there was no evidence about how this course would add value to the applicant’s future. The Tribunal accepted that a course in management would have some benefit to running a business relating to construction but was not satisfied that the course would assist in developing a specialised project such as an animal trail (at [35]); and
h)noting that the applicant had only minor experience in running a business, the Tribunal was not satisfied that that experience would hold him in any stead to manage a carpentry or construction business or develop his proposed animal trail. As such, the Tribunal placed little weight on the applicant’s plans to “run a business” – whatever that business was (at [36]).
The Tribunal then stated:
37. There is no doubt that a carpentry course would assist in gaining a qualification to assist in making himself competitive in the market, if that is the applicant’s goal, and that it is reasonable to study in another country to gain such a qualification. However, given the contradictory evidence given by the applicant between whether he intends to return to look for such a carpentry job, or to develop and manage the construction of a nature trail and associated hotels and facilities, the Tribunal cannot be satisfied as to what he does actually intend to do when he returns. As a result, the Tribunal cannot be certain as to the true value of a carpentry course or a construction management course to the applicant’s future.
38. In addition to what I have expressed above, the applicant also told the Tribunal that he came to Australia to explore, and did not leave once he finished his fitness course because he wanted to explore further. Despite his desire to so explore, he has only travelled to the south of Western Australia. Even allowing for use of language, the applicant clearly told the Tribunal that one of his main purposes of coming to Australia was to explore Australia. This may have meant that he intended to experience Australia while studying. If that is the case, then that has been achieved, and the applicant does not need to stay longer to do so. If he did want the Tribunal to accept that he came to and remained in Australia for the dominant purpose of exploring Australia, then that proposition poses a difficulty because:
a. That is not what a genuine student predominantly comes to Australia for, and
b. In any event, given he has not effectively explored Australia, the Tribunal finds that proposition conflicting with what he has done, which is to remain in the one place and study in 3 distinct and separate areas, and work.
39. Either way, the Tribunal is left with inconsistencies in either what the applicant has told it, or what the applicant has actually done, such that it is not satisfied that it has any real appreciation of what the applicant wishes to do, and what his goal was when he originally came to Australia. Even if he did first come to Australia as a genuine student, all of the inconsistencies expressed above add weight to a finding that he is now using the student visa system to maintain ongoing residence.
40. The applicant says that the carpentry qualification is not available in Mauritius, and that may be so. The Tribunal gives him some weight in his favour in relation to him being able to remain and complete his carpentry course, if that is the case. However it does not explain why he has decided to now stay and study a 2 year Diploma course in construction management. The Tribunal accepts that an Australian qualification will give him a competitive edge, and that that course may have some benefit to his future if he wants to work or run a business in the construction industry, and this factor can be given some weight in his favour, however other than the fact that he wants to run ‘a business’ at some unknown time in the future, or otherwise build an animal and health trail with hotels made of the natural resources of Mauritius, the Tribunal has no more specific information than that and, like the carpentry course, cannot see that the Diploma course has any real benefit to the applicant’s future. The Tribunal cannot give that factor, in relation to the Diploma course, any weight in his favour.
41. On the contrary, given the lack of any real direction provided by the applicant as to his future, despite the considerable sum of money he has paid for the courses he has now completed, or almost completed, and wants to remain to complete, no matter what course, the Tribunal is satisfied that the applicant is using the student visa system to maintain ongoing residence in Australia, and this factor weighs heavily against him.
The Tribunal then considered the applicant’s circumstances in Australia and Mauritius, as follows:
a)the Tribunal was satisfied that the applicant had not entered into a relationship of concern and placed some weight in the applicant’s favour in relation to this factor (at [43]);
b)the applicant’s living arrangements in Australia and Mauritius were noted and it was explained that the applicant was a well-regarded youth in Mauritius and that he had also joined a volunteer group in Australia which has established community ties (at [44]-[45]). The Tribunal accepted that the applicant had some ties to Mauritius, and few ties to Australia, such that he had some incentive to return to his home country. This weighed in favour of the applicant. However, it did not appear to the Tribunal that the applicant had any significant incentive to return to Mauritius. Hence, only a “little weight” could be given in that regard (at [46]);
c)given that the standard of living in Mauritius is lower than in Australia, the Tribunal accepted that the level of income the applicant would achieve (approximately $40,000-$50,000) would be relatively similar to what he might achieve in Australia once he is qualified and trained. The Tribunal found that this may also be a reason why the applicant does not have a significant incentive not to return to Mauritius (at [45]);
d)notwithstanding that the applicant’s bridging visa does not allow him to travel, the Tribunal found that as the applicant had not visited Mauritius since he arrived in Australia, this suggested that he did not have a need or desire to return to Mauritius to be with his family. The Tribunal determined that the applicant’s ties with his family are not strong and that his family would be able to visit him in Australia. Hence, the applicant’s ties to his family were given only minimal weight (at [47]);
e)the Tribunal positively found that the applicant is not subject to national military service and that there was no political or civil unrest or economic reasons that would cause the applicant not to return to Mauritius or provide an incentive for him not to return. This was given some weight in the applicant’s favour (at [48]);
f)the Tribunal accepted that “the applicant has some knowledge of living, studying and working in Australia and of Australian culture. However, no weight could be given to this factor as it suggested both that the applicant has a requisite knowledge of studying which may suggest that he is a genuine student, and also that he has a knowledge of working and living in Australia that suggests he is here for more than just study, such that he may be using the student visa regime for ongoing residence” (at [49]); and
g)the Tribunal referred to the applicant’s employment history and noted that his current employment in carpentry was ongoing. This suggested that he had built up ties through his work as a carpenter in the Australian community. Nonetheless, they were not “significant” and the Tribunal placed no weight on these ties (at [51]).
The Tribunal then considered the applicant’s immigration history, as follows:
a)noting that there was no evidence that the applicant’s visa had been refused or cancelled or that he had failed to comply with any conditions imposed on his visa, the Tribunal did not view the applicant as having a visa history of concern and gave this some weight in the applicant’s favour (at [52]);
b)the Tribunal found that the applicant had been in Australia for a significant length of time on a temporary visa. The Tribunal determined that while the applicant’s change of course did not weigh against him, it was evident from the applicant’s own evidence that he had completed a fitness course to stay in the country. Hence, the change to carpentry and then construction management could not simply be explained by the fact that he was a young person who did not know what he wanted to do when he first started tertiary study (at [53]);
c)the Tribunal noted that the applicant had remained in Australia and studied in two diverse areas and was now enrolled in a third area. The Tribunal stated that, even if it accepted that the fitness course was enrolled in in haste, or that it had something to do with his desire to develop a fitness and animal trail, this did not explain the third change – being carpentry, and now building management (at [54]); and
d)the materials before the Tribunal indicated that the applicant was now enrolled in a course which would mean that, if he was granted the visa and completed the course on time, he would have been in Australia for seven years to complete a Diploma level qualification. Even allowing for a difficult start and a change in direction, and accepting that this was a progression in his studies in terms of the levels of study, the Tribunal considered this a lengthy amount of time. When considered with the applicant’s evidence that he came to Australia to “explore” the country and that the Tribunal was not satisfied as to what the applicant’s goals for the future really were, the Tribunal could be satisfied that the applicant had used, and was using, the student visa regime to maintain ongoing residence in Australia. This weighed significantly against him being granted the visa (at [55]).
At [56], the Tribunal then stated:
Having regard to the applicant’s visa and travel history and education history, weighed with the other factors discussed, the Tribunal is satisfied that the applicant is using the Student visa to maintain ongoing residence.
Overall, the Tribunal determined that it was not satisfied that the applicant was a genuine temporary entrant for stay as a student. As such, he did not meet cl.500.212 (at [58]).
On the basis of the above, the Tribunal affirmed the decision to refuse the visa (at [59]-[61]).
Proceedings in this Court
In his judicial review application filed on 23 October 2019, the applicant indicated that he required an extension of time. He then provided an explanation as to why an extension of time should be granted.
The applicant does not require an extension of time. It is unnecessary to consider this issue further. To the extent that the applicant’s affidavit dated 23 October 2019 relates to an extension of time, it is irrelevant in relation to the substantive application before the Court.
The application for judicial review provides one ground of review, as follows:
The AAT failed to took into account irrelevant considerations in my case.
The applicant’s affidavit dated 23 October 2019 outlines some difficult personal circumstances. However, it appears that these circumstances arose after the Tribunal’s decision and the affidavit material was submitted to explain the “delay” in filing the substantive application for judicial review. As noted above, there is no need to consider any “delay” in relation to this matter.
The applicant filed a further affidavit on 3 December 2019. Annexed to that affidavit was an application which contained different grounds of review. The applicant explained that he tried to file this application before the first court date but was told he could not do so. The Court considers that the applicant is, in effect, seeking leave to file an amended application. It has considered the affidavit on that basis.
The applicant’s affidavit (and the amended application attached), contained four grounds of review, as follows:
a. The Tribunal’s conclusion that the Applicant’s change of course from Animal Studies and Veterinary Nursing Courses to Fitness Course to Carpentry and then to Construction Management cannot be explained adequately by a young person not knowing what they wanted to do when they first started tertiary study was illogical and irrational;
b. the Tribunal’s conclusion that the Applicant started the Fitness course just to stay in the country was unreasonable;
c.the same conclusions above by the Tribunal was the result of the Tribunal failing to ask appropriate questions, ignoring relevant material and relying on irrelevant material; and
d. the Tribunal failed to comply with section 348 and section 357 A of the Migration Act 1958 (Cth) (“the Act”) in that the Tribunal failed to fully and fairly review the delegate’s decision.
No further materials were provided by the applicant in support of his judicial review application.
Prior to the hearing commencing on 12 August 2020, the applicant forwarded a number of documents to Chambers. The Minister objected to the Court receiving those documents. The Court marked the documents as Exhibit 2 and the Minister made submissions as to weight. The Court will reference Exhibit 2 below.
The materials before the Court are thus limited to those referred to above, an affidavit of the applicant dated 23 October 2019, a Court Book numbering 147 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 21 July 2020.
At the hearing, the Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
The Minister also objected to the Court receiving Annexure KB-4 to the applicant’s affidavit dated 23 November 2019 – a letter from the Coroners Court dated 17 October 2019 indicating that the applicant had suffered mental health issues following a traumatic event.
As the Court understands, the applicant provided this letter in support of his application for an extension of time. However, as noted, the applicant does not require an extension of time.
For finality, the Court notes that this document was not before the Tribunal and thus has no bearing on the issue of jurisdictional error. There is nothing before the Court to suggest that, at the time the applicant appeared before the Tribunal, he was incapable of properly appearing for himself. Further, there is no evidence before this Court that indicates that the applicant was unable to represent himself. The applicant provided detailed and comprehensive submissions that were clear and focused.
The applicant appeared before the Court without legal representation. The Court gave him an opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concern that he had 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 applicant, the Court explained that it 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]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131] (“SZMDS”); 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 him the visa he seeks. 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 applicant stated that the Tribunal “did not allow him to ask all of his questions”, English was not his first language and he had some trouble with understanding. The Court will address these submissions below.
The applicant’s oral submissions otherwise appealed to the merits of the Tribunal’s decision and sought to explain why the applicant had undertaken certain courses and outline the hardship he has faced. Unfortunately, while the Court is sympathetic in relation to the concerns raised, these matters do not assist the applicant on judicial review.
Consideration
Ground 1
Ground 1 as detailed in the application for judicial review dated 23 October 2019 provides:
The AAT failed to took into account irrelevant considerations in my case.
To the extent that the applicant still presses the sole ground in his original judicial review application, the Court finds that it does not identify any jurisdictional error.
The ground itself is confusing and contradictory. It says that the Tribunal failed to take into account an “irrelevant” consideration. It also lacks particulars that identify what consideration (relevant or irrelevant) was or was not taken into account.
To the extent that the applicant is intending to say that that the Tribunal failed to take into account a relevant consideration, the Court notes as follows:
a)the Tribunal correctly outlined the relevant legislative provisions and the matters that were indicated as “factors” in Direction 69;
b)all of the material that the applicant provided (although not “mandatory considerations”) were itemised by the Tribunal. The Tribunal referred to this evidence throughout its decision; and
c)the Tribunal clearly had regard to the matters in Direction 69. The Tribunal’s reasons use the language in the Direction (for example, the Tribunal refers to “the value of the course to the applicant’s future”, “whether the course was available in Mauritius”, the applicant’s “ties” and “community involvement”). Put simply, the Tribunal’s decision methodically assessed the applicant’s evidence against the factors in Direction 69.
All relevant considerations were taken into account.
As for irrelevant considerations, the Court cannot identify any irrelevant matters that may have been considered by the Tribunal. All of the matters that were considered by the Tribunal were matters that were raised by the applicant in support of his application for the visa.
No jurisdictional error arises from the sole ground of review in the applicant’s original judicial review application dated 23 October 2019.
Ground A in the Affidavit dated 3 December 2019
Ground A in the affidavit dated 3 December 2019 provides:
The Tribunal’s conclusion that the Applicant’s change of course from Animal Studies and Veterinary Nursing Courses to Fitness Course to Carpentry and then to Construction Management cannot be explained adequately by a young person not knowing what they wanted to do when they first started tertiary study was illogical and irrational;
To understand Ground A, it is helpful to provide some context.
The studies the applicant has undertaken since arriving in Australia are as follows:
a)between July 2014 to December 2014 he completed an English Course;
b)from February 2015 until June 2016 he was enrolled in a Certificate III of Animal Companion studies. He did not complete this course (or the subsequent courses to which this course related);
c)between June 2016 and June 2017, he completed a Certificate III and Certificate IV in Fitness;
d)between August 2017 and August 2019, he completed a Certificate III in Carpentry; and
e)from October 2019 he was enrolled in a Diploma of Building and Construction (Management).
The applicant’s evidence before the Tribunal was that he was hesitant to ask for help and there were things in the Animal Companion course that he did not understand. This meant he could not finish the course. Further, the “teaching institution” told him to return home. Rather than do that, he says, he enrolled in the fitness courses (as this still related to his “dream” to build an animal trail). However, he conceded that had he had more time to consider his options, he would have enrolled in a carpentry course.
In effect, the applicant is arguing that [53]-[54] of the Tribunal’s decision is illogical or irrational. Those paragraphs provide:
53. The applicant arrived in Australia on 5 July 2014. At the time of the hearing in the Tribunal, the applicant had been in Australia, on a temporary visa, for 5 years. Given he came to Australia to study a 2 year course after completing an English course, that is a significant length of time to be here temporarily on the student visa regime. The Tribunal accepts that he struggled with his first substantive course, and that would not have been a reason, at that point, to be satisfied that he was not a genuine student. The Tribunal accepts that many people do not complete courses they attempt, and that people change course in their studies, particularly when they are young, and also accepts that there is added pressure on a young person when they are away from home. While that initial struggle and change does not weigh against him for the struggle itself, what does weigh against him is the fact that he also completed a fitness course, it appears from his evidence, to stay in the country, and therefore the change to carpentry, and now construction management, cannot be explained adequately by a young person not knowing what they wanted to do when they first started tertiary study. In fact, the applicant has said that he did know what he wanted to do – he wanted to develop his nature and animal trail, and that is why he came here to study the animal courses, even though in his 2017 visa application and in the papers provided to the Tribunal that was not mentioned.
54. The applicant has gone on to remain in Australia and study in 2 other diverse areas, and is now enrolled in a third area, although it is accepted that the construction management may bare some relation to the carpentry course. Even if the Tribunal accepted, which it does not, that the fitness course was enrolled in in haste, which explains the change in type of course, or that it had something to do with his desire to develop a fitness and animal trail, that does not explain the third change, being carpentry, and now building management.
The threshold for illogicality and irrationality is as articulated in SZMDS at [130]-[131] as follows:
130. In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Here, the Court is satisfied that the Tribunal’s reasons are neither illogical nor irrational. Rather, they are entirely sound.
The Tribunal did accept that the applicant’s first change of courses came about in entirely reasonable circumstances and no adverse weight was attached to what occurred in this regard. However, the applicant’s subsequent studies (not his initial studies) were at the core of the Tribunal’s concerns. In particular, the Tribunal was concerned with the diversity between the fitness courses and the construction courses.
The essence of the Tribunal’s reasons is that the applicant’s change of study pathway from fitness to construction was not adequately explained. The variance between the courses, or the “diversity” of the areas of study was, relevantly, not novel to the applicant in this review. The delegate also expressed concern with the “varying courses” that the applicant had undertaken. Put simply, the Tribunal did not consider that the applicant’s “dream” had such breadth that studies in animal companionship, fitness and construction were warranted.
Further, the Tribunal found that the applicant’s reasons for studying construction were inconsistent (for example, he initially said that he did so in order to could get work on large building projects but then stated that it would help him set up an animal trail on return to Mauritius). The applicant did not mention the animal trail in his application. Rather, he raised it at the hearing before the Tribunal. The Tribunal considered the link between the construction courses and the applicant’s “dream” to be “tenuous”. It also determined that, on the basis of the applicant’s own evidence, he came to Australia to “explore Australia” and his evidence suggested that he only enrolled in the fitness courses so that he could stay in Australia.
It was entirely open to the Tribunal to conclude that the applicant’s change of study pathway could not be adequately explained by the fact that the applicant was young or lacked confidence in relation to what he wanted to study. The Tribunal’s reasoning was, in effect, based on its assessment that the applicant lacked credibility when explaining why he had studied construction and the fact that the applicant’s own evidence did not support a conclusion that he had changed courses for genuine reasons.
Given the inconsistencies in the applicant’s evidence and his own candid admissions, it cannot be said that the Tribunal acted capriciously in making its finding in this regard.
No jurisdictional error arises in relation to Ground A. Ground A is, accordingly, dismissed.
Ground B in the Affidavit dated 3 December 2019
Ground B in the affidavit dated 3 December 2019 provides:
the Tribunal’s conclusion that the Applicant started the Fitness course just to stay in the country was unreasonable;
The Court assumes, as with Ground A, that the applicant is arguing the Tribunal’s finding was “unreasonable” as that term is interpreted in SZMDS at [130]-[131].
The Tribunal’s “finding” that the applicant is referring to provides:
53 … While that initial struggle and change does not weigh against him for the struggle itself, what does weigh against him is the fact that he also completed a fitness course, it appears from his evidence, to stay in the country…
The Tribunal did not make a positive finding that the applicant completed the fitness courses to remain in Australia. Rather, it stated that the evidence suggested that this was the case. The Tribunal focused on the applicant’s own evidence in this regard, as follows:
While he felt that he could not achieve his dream through the animal studies courses, he agreed fitness would be a good idea because that also related to his dream, although it also meant he could then show his family that he had achieved something. He felt that he probably would have done carpentry if he had had more time to think about it, however he was aware that he had to be enrolled, and thought he would take up Polytechnic West’s suggestion.
There is no transcript before the Court to suggest that this was not the applicant’s evidence. Hence, on the face of the Tribunal’s decision there was a logical basis upon which the Tribunal could find that it appeared from the applicant’s own evidence that he had completed the fitness course so that he could stay in the country. Indeed, the applicant’s evidence was that he enrolled in the course because he was “aware that he had to be enrolled”.
Ground B is dismissed.
Ground C in the Affidavit dated 3 December 2019
Ground C in the affidavit dated 3 December 2019 provides:
the same conclusions above by the Tribunal was the result of the Tribunal failing to ask appropriate questions, ignoring relevant material and relying on irrelevant material; and
Ground C argues that the Tribunal’s finding that the applicant’s change of course could not be explained as simply being the result of his being a young person who did not know what he wanted to do when he first started tertiary study, and the Tribunal’s finding that the applicant started the fitness course so that he could stay in Australia, arose from the fact that the Tribunal failed to ask “appropriate questions”, “ignored relevant material” and “relied on irrelevant material”.
The applicant is responsible for advancing his own case about why he meets the relevant visa criterion. The Tribunal has no duty to make the applicant’s case by, for example, asking particular questions that might favourably assist an applicant. If it was the case that the Tribunal did not ask an appropriate question that would elicit a particular answer or piece of information from the applicant that was beneficial to his case, then that was a matter for the applicant to raise on his own behalf.
The Tribunal did not err by failing to ask “appropriate questions”.
The applicant has not identified what “relevant material” was overlooked or what “irrelevant material” was relied upon by the Tribunal to make findings that the applicant’s change of course could not be explained adequately by the fact that the applicant was a young person who did not know what they wanted to do when they first started tertiary study or the finding that the applicant had started the fitness course so that he could stay in the country.
The Tribunal relied on the applicant’s own evidence and explanations when making these findings. It referred with forensic detail to that material and noted inconsistencies between that evidence and the explanations provided. It also noted an absence of particular matters in the applicant’s earlier statements.
Here, any “relevant materials” were those that had been provided by the applicant. All were considered. If they were “irrelevant” the applicant ought not to have provided them to the Tribunal for consideration. The Tribunal did not fail to consider any relevant considerations or consider any irrelevant considerations.
Before this Court, the applicant made a submission that it was “very hard” for him to study and referred to there being financial hardship. When asked to clarify, he stated that he did not mention this to the Tribunal and that was a mistake on his part. In those circumstances, it cannot be said that this was “relevant material” that the Tribunal should have considered. It was never put to the Tribunal.
As noted above, there was a sound, reasonable and probative basis for the Tribunal’s findings. They were based entirely on relevant materials and considerations flowing from those materials.
Ground C is dismissed.
Ground D in the Affidavit dated 3 December 2019
Ground D in the applicant’s affidavit dated 3 December 2019 alleges that the Tribunal failed to comply with ss.348 and 357 of the Act. It appears that the applicant is referring to s.357A of the Act (as there is no s.357 in the Act).
Ground D, on one view, is no more than the applicant expressing disagreement with the Tribunal’s decision. He does not state how the review was not “full and fair” or why the Tribunal’s decision was not the correct and preferable decision. It appears that the applicant’s concern is based purely on the fact that he thinks that he should have been granted the visa.
Disagreement does not amount to jurisdictional error.
To the extent that the applicant is suggesting that the Tribunal did not comply fully with the exhaustive procedural fairness obligations in div.5 of pt.5 of the Act, the Court finds as follows:
a)the Tribunal invited the applicant to provide information pursuant to s.359 of the Act and the Tribunal had regard to that information;
b)there was no information that the Tribunal was required to put to the applicant under ss.359A or 359AA of the Act. All of the information that the Tribunal relied upon was information that had been provided by the applicant and was therefore exempt from these provisions;
c)the applicant was invited to, and attended, a hearing before the Tribunal where it is apparent that he was able to provide evidence, present arguments and meaningfully participate as is required under s.360 of the Act. The determinative issue (whether the applicant met cl.500.212 of the Regulations) was also the same as that assessed by the delegate. Hence, the applicant was not required to be given further notice of the issue: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63;
d)the applicant did not request an adjournment or an extension of time in which to provide any further information. There does not appear to have been any reason for the Tribunal to exercise a relevant discretion; and
e)there is nothing on the face of the decision to indicate that the Tribunal displayed bias, either actual or apprehended. The Tribunal approached the review with an impartial mind and it is clear from the Tribunal’s decision (noting that it gave a number of matters favourable weight) that the Tribunal was fair and open minded.
The Tribunal conducted a “fair” review. The Tribunal also conducted a “full” review. It considered all of the materials that the applicant had provided. It took into account the relevant legislative provisions and Direction 69. It carefully assessed and evaluated that evidence to form the conclusion that the applicant did not meet cl.500.212. There was no error in the Tribunal’s review processes.
Ground D is, accordingly, dismissed.
Applicant’s Oral Submissions
At the hearing, the applicant submitted that he went to the hearing before the Tribunal with “notes” of what he wanted to read and say but that the Tribunal did not allow him to read his notes.
There is no transcript before the Court to suggest that the applicant was prevented from asking questions. Further, the Tribunal’s decision record demonstrates that the applicant participated with the Tribunal and gives no indication that the applicant was unable to speak. On many occasions, the Tribunal states that the applicant “told” the Tribunal many things. This demonstrates that the applicant was able to provide evidence openly.
The applicant also referred to English being his second language, explaining that he had some difficulty before the Tribunal.
The applicant never requested an interpreter before the Tribunal. Further, there is nothing in the Tribunal’s decision record to indicate that the applicant had any difficulty understanding the Tribunal’s questions. The responses the applicant provided (which were recorded by the Tribunal at, for example, [23] and [29]) demonstrate that the applicant understood what was being asked of him.
The Court is satisfied that the applicant’s oral submissions do not give rise to any jurisdictional error.
Exhibit 2
Shortly prior to the hearing, the applicant forwarded a number of documents to Chambers. Those documents included a variety of photographs of the applicant working on construction sites and a number of “letters of support” from individuals (including a psychologist and a general practitioner) which indicate that those people think that the applicant should be allowed to stay in Australia.
Unfortunately, Exhibit 2 does not assist the applicant. The fact that the applicant’s psychologist or GP believe that it would benefit the applicant to remain in Australia is not relevant to the Court’s task on judicial review. The Court does not have the power to grant the applicant the visa or allow him to stay.
Accordingly, as the Minister correctly submitted, Exhibit 2 is given no weight. Further, it identifies no jurisdictional error.
Otherwise
In its duty to the self-represented litigant, the Court has remained astute and alert to any error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
In this regard, the Court notes the recent decision of Chief Justice Allsop in Eros v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1061 (“Eros”) as being relevant to the issue of whether the Tribunal correctly construed cl.500.212(a) of the Regulations in this matter.
In Eros, the Chief Justice found that the Tribunal had erred as it had not made a finding that the appellant did not intend to stay in Australia temporarily. The Tribunal had indicated that the appellant intended to stay in Australia for two years while her daughter was finishing her own study. His Honour confirmed that cl.500.212(a) of the Regulations was concerned with how long an applicant intends to stay in Australia and nothing else.
At [22], His Honour states:
What the Tribunal appears to have done in its reasoning is to raise doubts about the primary purpose or motivating purpose of staying in Australia (to be with her family, now specifically her daughter) and treat it as relevant to the meaning of “temporary stay”. Of course, those matters could be so relevant. If they informed a finding that Ms Eros intended to stay indefinitely in Australia (as the discussion in [19] hinted at, but without any conclusion) then plainly she would not genuinely intend to stay temporarily in Australia. But no such finding was made. The concern in the last sentence of [30] is not a finding. It is an expression of a concern. Subclause (a) is concerned and only concerned with the intention as to length of stay. The finding is not that she genuinely intends to stay indefinitely but for a defined, relatively short period related to an apparent desire to be near her daughter and to study. There is no finding (though there are hints) that Ms Eros is not a genuine applicant to stay as a student. To make that finding the Tribunal would have to deal with other considerations beyond the intended length of stay, and evaluate her evidence including the fact, if it is the case, as it appears to be, that Ms Eros has dutifully undertaken the various courses that she has enrolled in, and, if it be the case, that she genuinely wants to do the courses.
His Honour continued:
29… As Logan J said in Saini 245 FCR at 245 [28] about the relevant words of the predecessor to subcl (a), the words “are concerned with how long the visa applicant intends to stay in Australia and nothing else”.
30. The Tribunal’s finding at [30] was that, or was consistent only with a finding that, Ms Eros intended to stay temporarily. There was no finding that she would stay longer.
31. There may well be seen to be material before the Tribunal (relevant under subcl (a)(iv)) that may have permitted a finding of an intention to stay indefinitely, but that finding (and any supporting findings) was (and were) not made.
32. There may well be seen to be material before the Tribunal (relevant under subcl (c)) that may have permitted a finding that Ms Eros was not a genuine student and her stay was not “as a student”, but no such finding (and any necessary evaluation of evidence and supporting findings) was (and were) not made, or undertaken.
The question in this matter is: did the Tribunal fall into the same error?
Having reviewed the Tribunal’s decision, the Court is satisfied that the Tribunal did not err in the sense described in Eros. Here, the Tribunal made a definitive finding that it was satisfied that the applicant was using the student visa program to maintain “ongoing” residence in Australia (at [55] and [56]). The Tribunal made reference to various matters. This included evaluation of all of the evidence before it, from which it made supporting findings (see, [39] and [49]).
Unlike in Eros, there is nothing in the Tribunal’s decision here that amounts to a “finding” that the applicant was staying for a defined period of time. In Eros the Tribunal found that the appellant intended to stay in Australia at least while her daughter remained in Australia. Here, the Tribunal makes no finding of this sort. Instead, it concludes, unequivocally, that the applicant is using, and has used, the student visa program to maintain ongoing residence. Whether the misuse of the student visa program could have informed cl.500.212(c) is not relevant as the critical finding was that “the use” was for the sole purpose of maintaining ongoing residence. “Maintaining ongoing residence” is, in the Court’s view, a clear finding that the applicant did not intend to stay in Australia temporarily.
No misconstruction or misapplication of cl.500.212(a) of the Regulations arises in the circumstances of this case.
Conclusion
The applicant’s original application and his amended application (provided in his affidavit dated 3 December 2019) fail to identify any jurisdictional error. The Court has otherwise been unable to identify any jurisdictional error on the face of the Tribunal’s record.
The application is, accordingly, dismissed.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 13 August 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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Procedural Fairness
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Natural Justice
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Jurisdiction
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Statutory Construction
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