Brar v Minister for Immigration and Border Protection (No 2)
[2017] FCCA 1538
•5 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRAR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 1538 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Indian citizen – temporary student visa – application for fifth student visa – whether genuine temporary entrant – whether relevant matters considered – whether real and meaningful hearing – whether impermissible merits review sought – where delegate’s decision affirmed on different basis – whether denial of procedural fairness – whether jurisdictional error. |
| Legislation: Evidence Act 1995 (Cth), Part 3.1 Migration Act 1958 (Cth), ss.360, 366, 375A, 438, 474, 476, 499 Migration Regulations 1994 (Cth), Sch.2, cl.572.223, Sch.5A |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 |
The Concise Oxford Dictionary of Current English, Seventh Ed. (Oxford: Oxford University Press, 1984)
| Applicant: | KULDEEP KAUR BRAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 177 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 22 June 2017 |
| Date of Last Submission: | 22 June 2017 |
| Delivered at: | Perth |
| Delivered on: | 5 July 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 177 of 2016
| KULDEEP KAUR BRAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application concerns an application for a fifth student visa by the applicant, Kuldeep Kaur Brar (“Ms Brar”) who first came to Australia in 2008 to study nursing. Apart from short return visits to India, Ms Brar has remained in Australia on student, visitor or bridging visas for more than nine years (and almost eight years at the time of the decision sought to be reviewed). She initially studied nursing, then business, then dental assisting, then management, and now seeks a fifth student visa to do advanced studies in business, and indicated to the Administrative Appeals Tribunal (“AAT”) that she intended to take further advanced studies in management. Ms Brar has family in India, notably her parents and two siblings, and in Australia she has her husband (from whom she is separated), a child born in Australia in 2014, a sister residing in Australia, and a brother-in-law (her husband’s brother) with whom she has been residing. Apart from a period of pregnancy, Ms Brar has worked part-time as an aged care personal attendant in Australia since 2010, in addition to her studies. Ms Brar asserts that her several years of studies are to assist her to establish a clinic in India.
It was against the above background that the AAT made a decision (“AAT Decision”) in which it found that it was not satisfied that Ms Brar intended genuinely to stay in Australia temporarily, and therefore did not meet the criteria for the grant of a Student (Temporary) (Class TU) visa (“Temporary Student Visa”) under the criteria in cl.572.223(1)(a) of the Migration Regulations 1994 (Cth) (“Migration Regulations”) which requires that the Minister for Immigration and Border Protection (“Minister”) be satisfied that Ms Brar is a genuine applicant for entry and stay as a student who “intends genuinely to stay in Australia temporarily”. The AAT Decision appears in the Court Book (“CB”) at CB 147-154.
For reasons which follow there is no reason to doubt the correctness of the AAT Decision, and no basis on which to find that the AAT Decision is affected by jurisdictional error, which it must be if this Court is to afford the prerogative relief sought by Ms Brar: Migration Act 1958 (Cth) (“Migration Act”), ss.474 and 476.
Background – general
It is convenient to commence with a setting out of essentially uncontroversial background events taken directly from the AAT Decision:
13. The applicant was born in 1981 in India and she is aged 34 years and is a citizen of India.
14. The applicant has family in India. The applicant's parents reside in India. The applicant's father operates a bus company business transporting workers from villages to a mill factory in India. The applicant has a brother who is working and lives in India with her parents. The applicant also has a sister who is married and residing in India. The applicant's other sister is married and currently residing in Australia and recently applied for a further visa to remain in Australia.
15. The applicant was married. The applicant is currently separated from her husband. She separated from him a few months ago. Her husband travelled to Brisbane and returned to Western Australia but she does not have contact with him. The applicant gave birth to a child in January 2014. The applicant is the primary carer for her child and the child lives with her in Australia. The applicant resides with her brother-in-law (her husband's brother) in Western Australia.
16. The applicant grew up in India and finished her high school education in 2000. The applicant pursued studies in nursing between 2001 and 2004 and became a registered nurse in India. Between 2004 and 2008 the applicant worked as a nurse in hospitals in India.
17. On 25 June 2008 the applicant was granted a student (subclass 573) visa with effect until 22 April 2010. On 9 July 2008 the applicant travelled to Australia on her student visa. Since that time the applicant has been granted a further three student visas and a visitor visa, as well as a number of bridging visas. The Tribunal finds that on 22 April 2010 the applicant was granted a student (subclass 573) visa until 1 October 2010. On 1 October 2010 the applicant was granted a visitor (subclass 676) visa until 1 January 2011. On 6 January 2011 the applicant was granted a student (subclass 572) visa with effect until 21 March 2012. On 19 March 2012 the applicant applied for a further student visa. The applicant was on bridging visas between 22 March 2012 and 6 November 2014 pending the outcome of her student visa application. This application was initially refused, but after a review by the Migration Review Tribunal, on 7 November 2014,the applicant was granted a student (subclass 572) visa with effect until 20 April 2015. On 16 April 2015 the applicant applied for her fifth student visa and this is the application currently before the Tribunal.
18. The applicant has undertaken a number of courses whilst in Australia. After arriving in Australia between 2009 and 2010 the applicant studied a Bachelor of Nursing Conversion. On 3 September 2010 the applicant was awarded a Bachelor of Nursing Conversion from Murdoch University. The applicant stated that she extended her initial student visa until October 2010 in order to complete her Bachelor of Nursing Conversion.
19. After obtaining her Bachelor's degree the applicant hoped to work in Australia. The applicant told the Tribunal that she wanted to work as a nurse in Australia. She stated that her plan in coming to Australia was to increase her knowledge and skills and do higher level studies. She thought if she obtained the necessary English language proficiency, as she had been working in a nursing home, that she would stay in Australia and if she was unable to obtain the necessary English language skills then she would go back to India. She wanted to practice in Australia however she did not have the necessary English language proficiency. So the applicant obtained a visitor visa in October 2010 and in November 2010 she returned to India and studied English with a view to obtaining the necessary language English language proficiency. However she could not finish the English exam. On 23 December 2010 the applicant returned to Australia on the visitor visa. As she was unable to obtain the necessary English language proficiency she decided to change her course and enrolled in a Diploma of Business. The applicant subsequently applied for and was granted a student (subclass 572) visa on 6 January 2011.
20. Between 2011 and March 2012 the applicant successfully undertook and completed studies in the Diploma of Business. On 9 March 2012 the applicant was awarded a Diploma of Business from Technical College of Western Australia. The Tribunal asked the applicant why she undertook these studies and she stated that her purpose in completing a Diploma of Business was to help her when she opens her own business being a medical clinic in India. She stated that she was going to operate her own business running a clinic and she needed business knowledge. The applicant stated that she pursued a Diploma of Business so she could operate her own business otherwise she would need to hire another person or have a partner to manage the clinic in India.
21. After completing the Diploma course the applicant applied for her fourth student visa. Between April 2012 and April 2013 the applicant undertook studies in a Certificate III in Dental Assisting at West Australian Institute of Further Studies. On 12 April 2013 the applicant was awarded a Certificate III in Dental Assisting by the West Australian Institute of Further Studies.
22. The applicant stated that thereafter she pursued a Certificate IV in Dental Assisting, although the Tribunal has no documentation this regard. The applicant stated that she studied the subjects in the Certificate IV however she did not complete the course and was not awarded the Certificate IV. The applicant stated that she undertook all the theoretical units of the Certificate IV course however she did not attend for the practical units of the course and therefore was not awarded the Certificate IV. She stated that in the period between May 2013 and June 2014 she did study however she was pregnant, and had bouts of illness and had to care for her child so was on sick leave for parts in that period.
24. On 7 November 2014 the applicant was granted her fourth student visa. Between 2 June 2014 and 1 May 2015 the applicant successfully undertook a Diploma of Management. On 8 May 2015 the applicant was awarded a Diploma of Management from Stanley College.
25. On 16 April 2015 the applicant applied for her fifth student visa, that is the visa application under consideration by the Tribunal. The applicant lodged the visa application on the basis that she was enrolled in an Advanced Diploma of Business from 20 April 2015 until 17 April 2016. The applicant told the Tribunal that she has been undertaking these studies and anticipates completing the course in April 2016. The applicant stated that her purpose in undertaking this course was to increase her skills and knowledge.
26. On 15 March 2016 the applicant enrolled in a further course being an Advanced Diploma of Leadership and Management which is due to commence on 23 May 2016 and end on 17 November 2017. The applicant stated that she enrolled in this course to increase her skills and to·finish her studies in Australia. She stated that she wished to complete an Advanced Diploma in Business and an Advanced Diploma in Management. The Tribunal asked why it was in March 2016, a year after her latest student visa application, that she decided to enrol in a further course of being an Advanced Diploma of Management. The applicant was unable to give a cogent response other than to say it was different from her Advanced Diploma of Business and she had completed a Diploma of Management but thought she should complete an Advanced Diploma of Management. She referred to increasing her skills and it was more advanced than the Diploma of Management. The Tribunal queried how this course of Advanced Diploma of Management would assist her in her plan to open a clinic in India. She replied by stating that she did not have enough study and she is not competent yet and that is why she is pursuing the further course in advanced management.
27. In relation to the applicant's work history in Australia, she stated that she did not work between 2008 and 2010 in Australia. Since 2010 the applicant has been working in a nursing home as a personal assistant/carer. She worked from 2010 until approximately 2014. She ceased work prior to giving birth to her child and resumed working several months later in late 2014. The applicant stated that she is earning approximately $21 per hour gross and she works 20 hours or less per week.
28. The applicant has no assets in India and she receives no income from India, other than the financial support her father sends her.
29. The applicant told the Tribunal that she intends to return to India to establish a medical clinic. She has not made any plans as at the date of hearing similar regard to establishing this nursing clinic [sic] and she believes she must finish her studies first.
30. The applicant has returned [to] India on multiple occasions since 2008. The applicant has returned in 2010, 2012, 2013 and 2016. She told the Tribunal that she has returned to India for several reasons over the years - to see her parents, because she has been home sick or at other times because she has been unwell. In 2016 she returned to India because her father was unwell and also because she was sick and had treatment for her shoulder in India. Her daughter travelled with her to India and then returned back to Australia.
AAT Decision CB 149-152 at [13]-[30].
Background – specific to fifth Temporary Student Visa application
The background specific to Ms Brar’s current Temporary Student Visa application prior to the AAT Decision is as follows:
a)Ms Brar lodged an application for the Temporary Student Visa on 16 April 2015: CB 1-9, on the basis that Ms Brar had a confirmation of enrolment certificate for an Advanced Diploma of Business at the Technical College of Western Australia: CB 54;
b)on 17 April 2015 the Department of Immigration & Border Protection (“Department”) wrote to Ms Brar and requested that Ms Brar provide further information, including relevantly, details of her financial capacity and her relationship to the source of the proposed funds: CB 14-23. Ms Brar provided a number of documents in response: CB 24-56;
c)on 28 May 2015, the Department wrote to Ms Brar inviting her to comment on information it had received, namely that the financial documents provided to the Department had been verified by the New Delhi office, who found that the majority of the funds held in a bank account by her sponsor had been derived from a commission agent: CB 57-60. Ms Brar provided a response to this invitation to comment on 22 June 2015: CB 61- 67;
d)on 12 October 2015 the Delegate refused to grant Ms Brar the Temporary Student Visa on the basis that Ms Brar did not provide evidence of having met the financial capacity requirements in accordance with Sch.5A of the Migration Regulations: CB 69-76;
e)on 30 October 2015, Ms Brar applied to the AAT for review of the Delegate’s Decision: CB 77-78;
f)on 22 February 2016, Ms Brar was invited to appear on 22 March 2016 at a hearing before the AAT via telephone to give evidence and present arguments: CB 82-85. The invitation requested that Ms Brar provide various documents and supporting evidence to establish that she met the criteria for the grant of the Temporary Student Visa: CB 84. On 8 March 2016, Ms Brar requested that she appear at the hearing personally rather than by telephone: CB 88;
g)on 9 March 2016, the AAT advised that the hearing was scheduled to proceed via telephone because Ms Brar was located in Western Australia and the AAT Member was in Victoria: CB 89. The AAT further advised that Ms Brar could appear in person however she would need to pay her own travel costs, and also noted that Ms Brar could request to have the hearing proceed via video-link. No further correspondence in relation to Ms Brar’s mode of attendance at the hearing was provided to the AAT;
h)on 18 March 2016, the AAT wrote to Ms Brar (“18 March 2016 Letter”) and advised that it would be considering whether Ms Brar was a genuine temporary entrant as required by cl.572.223(1)(a) of Sch.2 to the Migration Regulations: CB 133-140. A copy of “Ministerial Direction No. 53 – Assessing the genuine temporary entrant criterion for Student visa” (“Direction 53”), made pursuant to s.499 of the Migration Act and which, by operation of s.499(2A) of the Migration Act, the AAT was required to comply with, was attached to the 18 March 2016 Letter; and
i)Ms Brar appeared at the scheduled AAT hearing on 22 March 2016 by telephone: CB 141-144.
AAT Decision
In the AAT Decision the AAT:
a)noted that the issue in the case was whether Ms Brar met cl.572.223 of Sch.2 to the Migration Regulations: CB 148 at [8], and went on to refer to and outline the factors in Direction 53: CB 149 at [10];
b)accepted that Ms Brar had family connections in India, that she had returned to India on a regular basis to visit her family and undergo medical treatment and that she had previously worked as a nurse in India for four years: CB 152 at [33], but found the following factors indicated that Ms Brar did not intend genuinely to stay in Australia temporarily:
i)Ms Brar had been living in Australia since 2008 and spent the majority of her time in Australia during this period: CB 152 at [35];
ii)Ms Brar had strong family connections to Australia, noting that she gave birth to her daughter who was currently living with her in Australia, the child’s father also lived in Australia (although was living separately from Ms Brar and the child) and Ms Brar’s sister was residing in Australia which “indicate a recent history of several years of residence in Australia with family connections in Australia”: CB 152 at [35]; and
iii)that Ms Brar has been working in Australia since 2010 generating income of $420 per week as an aged care personal assistant and had no assets or income in India, which the AAT considered was a financial incentive to Ms Brar to remain in Australia to work: CB 153 at [36];
iv)that Ms Brar’s recent decision to pursue a further course which commenced in May 2016 indicated that, contrary to her assertions to the AAT, her financial circumstances were not straitened, or that there was no financial incentive to remain in Australia, the AAT having noted that there was a financial incentive for Ms Brar to remain in Australia to work as she had done, other than during her pregnancy, since 2010: CB 151 at [27] and CB 153 at [36];
c)considered Ms Brar’s study history in Australia, and:
i)noted that Ms Brar was seeking her fifth student visa, and had studied a Bachelor of Nursing Conversion, Diploma of Business, Certificates III and IV in Dental Assisting, Diploma of Management and was studying an Advanced Diploma of Business: CB 153 at [37];
ii)noted that after completing a higher education course in 2010, Ms Brar had pursued lower level courses which were cheaper: CB 153 at [37];
iii)did not accept that Ms Brar intended to establish a medical clinic in India given that Ms Brar had made no business plans and had no recent work experience in India or Australia working in a medical clinic and this this gave the AAT “serious concerns as to whether she intends genuinely to return to India”: CB 153 at [37]; and
iv)absent any cogent explanation as to why she had recently enrolled in a further management course, considered Ms Brar was pursuing the Temporary Student Visa application with a view to remaining in Australia and to continue working, and that Ms Brar had been using the Student Visa programme as a means to remain resident in Australia: CB 153 at [37];
d)ultimately, was not satisfied that Ms Brar intended genuinely to stay in Australia temporarily and therefore did not meet the requirements of cl.572.223(1)(a) of Sch.2 to the Migration Regulations: CB 152 at [38];
e)decided to make no findings in relation to whether Ms Brar met the financial capacity requirements in light of its findings regarding cl.572.223(1)(a) of Sch.2 to the Migration Regulations: CB 154 at [39]; and
f)affirmed the Delegate’s Decision not to grant Ms Brar a Temporary Student Visa: CB 145-160;
The Judicial Review Application
On 18 April 2016, Ms Brar filed the Judicial Review Application. The grounds of the Judicial Review Application are as follows:
1. When I applied for the Advanced Diploma of Leadership and Management I was refused based on the genuineness of the funds. This was the sole reason why I did not get my student visa. I cannot understand why my MRT application has been refused on the basis of the validity for the reason I am pursuing the course. I feel that I have been unjustly judged and my only hope of pursuing my educational career is now lost.
2. It is true that I have done four courses in Australia and the Advanced Diploma of Leadership and Management will be the last course that I will study here. When I open up a clinic back home in India there will be many different kinds of people I will have to interact with and have to learn how to deal with. I don't feel right in confessing this but the leadership course is necessary because the courses I have done so far are under par to what I have expected. In effect I still feel that I have not gained enough of theoretical knowledge to be an effective leader in the clinic.
3. Although I have done many courses here I still feel that I do not have the adequate still level to start my own clinic. To run a clinic I will have to have to practical qualifications in the medicinal field. This is something I possess and will be well versed with any issues that come up related to the medical profession. I came to this country with the main aim of first getting a high quality nursing degree and then following it with management and leadership training.
4. Some of my friends have done Advanced Diploma of Leadership and Management and they tell me the course is of a very high standard. I have full trust in my friends as they all have done very well for themselves. They have advised me on many things in my life.
5. At the time of the hearing I was not able to properly communicate this because I was scared and I have never been put in this situation before. So much was at stake for me but I could not put in words why I wanted to do this course. I am very serious about this course and it will be the final course I study in this country in this regards.
6. I want to reconfirm that I am going to return to India and I have all my family in India. I have a failed marriage in this country and I would like to leave the past behind. I would like to go back to India and start afresh. I have centered all my effort into going back to India and setting up my own clinic. I know the situation in India and how badly the people are affected by a failed health system. The need to set up this clinic is dire. I feel with my experience as a nurse and the humanitarian requirement back home in my country I must do all I can to help out.
7. I need the leadership skills that this course will give instructions for, as you know it is tough in India for a woman to get anything done on her own. For a women to set up her own clinic and be in control in every aspect of it I need all the help I can get. As it stands I do not feel I have the adequate skills to be a successful leader in this challenging field.
8. As for the initial and significant reason for filing an MRT application please find below explanation, which should clarify any doubts you may have.
9. The bank statements, which I attached as part of my MRT, indicate that the funds in the sponsor's account are to be used for generating the overdrafts. These funds were accumulated and saved by periodic deposits and the history of these funds is that the funds have been collected from his (MY FATHERS) on-going business of transportation as well as the money lending business. Thus, he lends money to Broker and receives interests on it too. The bank statement proves that these periodic deposits are being done recurrently. This means that some of the amounts are of the transport business and some of the money lending business.
On 25 May 2016 the Court made orders permitting Ms Brar to file an amended application including complete particulars by 27 June 2016 and any written submissions by 11 May 2017. Ms Brar did not file or serve any amended application or any written submissions. Ms Brar’s oral submissions at hearing raised no discernible case of error in the AAT Decision.
The Minister filed written submissions on 1 June 2017 in accordance with the Court’s orders of 25 May 2016. The Minister’s oral submissions at hearing reflected the written submissions filed on 1 June 2017.
Consideration of grounds of Judicial Review Application
Legislation
Clause 572.223(1)(a) of Sch.2 to the Migration Regulations (the genuine temporary entrant criterion) required that the following criteria be satisfied at the time of the AAT Decision:
(1) The Minister is satisfied that the Applicant is a genuine Applicant for entry and stay as a student because:
(a) the Minister is satisfied that 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.
Criteria under Direction 53
The criteria to be considered under Direction 53 relevant to Ms Brar are as follows:
a)Ms Brar's circumstances in her home country, potential circumstances in Australia, and the value of the course to Ms Brar's future;
b)Ms Brar's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries; and
c)any other relevant information provided by Ms Brar, or information otherwise available to the AAT, including information that may be either beneficial or unfavourable to Ms Brar.
Jurisdictional error required
The AAT Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ: Migration Act, ss.474 and 476. Further, an error by the AAT, will only constitute jurisdictional error if the AAT:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the AAT’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In relation to the necessity for jurisdictional error to be established Ms Brar’s assertion, which runs generally through her Judicial Review Application, that, contrary to the AAT’s findings, she is a genuine student and intends to return to India to open a clinic, is a plea for factual merits review which this Court is not permitted to undertake upon judicial review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
Grounds 1-4 and 6-7
These grounds do no more than recite some of the relevant factual material, and advance argument on the merit case which was argued by Ms Brar before the AAT. These grounds neither assert nor establish any jurisdictional error in the AAT Decision.
Ground 5
Ms Brar’s contentions that she was not able to properly communicate and could not put into words why it was that she wished to pursue further studies is not made out on the available evidence. There is currently no evidence before the Court (such as the recording or transcript of the AAT hearing) which would suggest that Ms Brar was not given a real and meaningful hearing for the purposes of s.360 of the Migration Act. In the absence of such evidence, Ms Brar’s allegation in relation to what occurred at the AAT hearing cannot succeed: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241. There is no indication in the AAT Decision that the AAT had any difficulty understanding Ms Brar, or concerns regarding Ms Brar’s ability to communicate with the AAT, or any suggestion that Ms Brar expressed such a concern at the AAT hearing, or that there was anything which arose which suggested such a concern on the part of the AAT. Indeed, when one reads carefully the extracts from the AAT Decision set out above it cannot seriously be contended that the AAT had any difficulty in understanding, and reproducing in the AAT Decision, any of the matters that Ms Brar put to the AAT. In particular, when CB 150 at [18]-[20] and CB 152 at [22]-[23] and [25]-[29] and CB 152 at [30]-[31] are read it is apparent that Ms Brar was effective in communicating her views to the AAT, save that the AAT took the view that her response to why it was that she had enrolled in a further course for a period after completion of the course (the Advanced Diploma of Business) the subject of the current Temporary Student Visa application was not “cogent”, that is not forcible or convincing: The Concise Oxford Dictionary of Current English, Seventh Ed. (Oxford: Oxford University Press, 1984), page 180, and not that Ms Brar’s submissions were not understandable. Furthermore, the Court notes that the grounds of the Judicial Review Application reflect much of what the AAT says was put to it at the AAT hearing, which is inconsistent with an assertion that Ms Brar was not able to properly communicate or put into words why it was that Ms Brar proposed to do this additional course. It is, however, the case that Ms Brar’s enrolling in a further course (the Advanced Diploma of Leadership and Management) was factual material which reinforced the AAT’s view that Ms Brar was simply enrolling in course after course in order to prolong her stay in Australia, and thereby did not evince an intention to temporarily stay in Australia as a student. That view was open to the AAT on the materials concerning Ms Brar’s enrolment in a further course, and the AAT was entitled on those materials to form the view that it did that Ms Brar was “pursuing the pending student visa application with a view to remaining resident in Australia and to continue working”: CB 153 at [37].
For the sake of completeness, the Court notes that the AAT hearing was a hearing by telephone link, and that at least initially Ms Brar raised some objection to that, although the objection does not appear to have been pursued: see [5(g)] above. The AAT was entitled to hold a hearing by telephone, and without more (and nothing more is raised in this case) the fact that there was an AAT hearing by telephone does not establish jurisdictional error in the AAT Decision: Migration Act, s.366; SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 at [23]-[25] per Reeves J; Minister for Immigration & Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525 at [28] per Allsop CJ, Murphy and Pagone JJ.
The final sentence of ground 5 is a merit submission, and thus not one for consideration by the Court upon a judicial review application: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In the circumstances, ground 5 does not establish any jurisdictional error in the AAT Decision.
Grounds 8-9
Insofar as Ms Brar contends in grounds 8 and 9 that the AAT erred by affirming the Delegate’s Decision on a different issue than that considered by the Delegate, there is no jurisdictional error in the AAT doing so. It was open to the AAT to affirm the Delegate’s Decision for different reasons as the nature of the review before the AAT is that of re-hearing de novo, with the AAT being required to make the correct or preferable decision on the material before it: Tennakoon v Minister for Immigration & Multicultural Affairs [2001] FCA 615 at [15] per Gray J; SAAZ v Minister for Immigration & Multicultural Affairs [2002] FCA 791 at [20]-[24] per Mansfield J; DZAEH v Minister for Immigration & Border Protection [2016] FCA 83 at [34] per Besanko J. Once the AAT was not satisfied that Ms Brar met the genuine temporary entrant criterion, it was not required to consider whether Ms Brar met the remaining criteria for the grant of the Temporary Student Visa: Woo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1596 at [32] per Sackville J; Khanna v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 53; (2004) 180 FLR 241 at [9] per Scarlett FM; Farooq v Minister for Immigration & Anor [2016] FCCA 376 at [13] per Judge Lucev. It follows that grounds 8 and 9 have not been made out, and do not establish jurisdictional error in the AAT Decision.
Generally
In circumstances where Ms Brar was made aware of the determinative issue on review and had sufficient opportunity to respond to the issue by reason of:
a)the AAT sending the 18 March 2016 Letter to Ms Brar (attached to which was a copy of Direction 53) alerting her to the issue that the AAT would be considering, namely whether she was a genuine temporary entrant: CB 133-140; and
b)the AAT Decision indicating that the issue was discussed with Ms Brar at the hearing, with the AAT expressing its concern that it may not be satisfied that Ms Brar intended genuinely to stay in Australia temporarily: CB 148 at [8] and CB 152 at [31],
there was no breach of s.360 of the Migration Act: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300.
There is no doubt that the AAT had to consider all the claims made by Ms Brar, and all the integers of those claims as articulated by Ms Brar, or discernible by the AAT on the case as made by Ms Brar: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; [2003] 197 ALR 389; (2003) 73 ALD 321; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Healy JJ; Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] and [62] per Kenny, Griffiths and Mortimer JJ. In this case, as is evident from the Court’s lengthy extract of the background taken directly from the AAT Decision at [4] above, and the summary of the AAT Decision at [6] above, the AAT dealt with the claims made by Ms Brar, and the issues arising from Ms Brar’s claims. In the circumstances, there was no jurisdictional error by reason of a failure to consider Ms Brar’s claims or the integers of Ms Brar’s claims.
The AAT Decision:
a)correctly identified the issue as being whether Ms Brar met the criteria in cl.572.223(1)(a) of Sch.2 to the Migration Regulations, which required it to have regard to the factors in Direction 53: CB 148 at [9]-[10]. The Court particularly notes that there was no failure to take into account whether or not Ms Brar met the criteria for a Temporary Student Visa, as the issue of whether or not Ms Brar met the genuine temporary entrant criterion was the issue considered by the AAT;
b)correctly noted that the factors in Direction 53 should not be used as a checklist but were intended to guide decision-makers to weigh up Ms Brar's circumstances as a whole in reaching a finding about whether Ms Brar satisfied the genuine temporary entrant criterion: CB 149 at [11]; and
c)at CB 152-154 at [32]-[41]:
i)properly considered Ms Brar's evidence and engaged in an "active intellectual process" and gave "genuine" consideration to the factors set out Direction 53: Minister for Immigration & Citizenship v Khadgi & Anor [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26 at [57] per Stone, Foster and Nicholas JJ (“Khadgi”); and
ii)made findings in relation to the factors that had practical relevance to Ms Brar's circumstances and evidence: Singh v Minister for Immigration & Border Protection [2016] FCA 74; Maudhoo v Minister for Immigration & Anor [2015] FCCA 1741 at [17] per Judge Emmett; Khadgi at [60]-[62] per Stone, Foster and Nicholas JJ; Sharma v Minister for Immigration & Anor [2015] FCCA 575 at [18] per Judge Vasta.
In all of the above circumstances, it is evident that the AAT:
a)correctly identified the relevant issue;
b)asked itself the correct question; and
c)had regard to all of the relevant material in dealing with the issues and questions before it, and did not have regard to any irrelevant material,
and in so doing arrived at factual conclusions which were open to it. The AAT therefore engaged in a legitimate and proper exercise of administrative decision-making which reveals no jurisdictional error, either in relation to the grounds set out in the Judicial Review Application, or otherwise. The AAT Decision, and the findings made within it, are not such that no rational or logical decision-maker could reach them on the same evidence: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16, (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [130] per Crennan and Bell JJ. It might indeed be arguable that the AAT Decision to affirm the Delegate’s Decision was the only logical and rational decision which could be made in relation to a “temporary” student visa for an applicant who had already resided in Australia for approximately eight years and was applying for a fifth student visa in a fourth area of study. The AAT’s finding that Ms Brar was not a genuine temporary entrant and did not meet the criteria in cl.572.223(1)(a) of Sch.2 to the Migration Regulations, was therefore open to it for the reasons it gave. No error, let alone jurisdictional error, is revealed.
Having regard to the matters set out at [10]-[23] above the grounds of the Judicial Review Application are not made out, and do not establish jurisdictional error in the AAT Decision.
The Section 375A Certificate
Although an issue not raised by the Judicial Review Application, the Minister, as a model litigant, raised the issue of, and made submissions concerning, a certificate issued by a delegate of the Minister under s.375A of the Migration Act on 12 November 2015 (“375A Certificate”): CB 181.
In Minister for Immigration & Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (“Singh”), a Full Court of the Federal Court held that procedural fairness required the AAT to disclose the existence of a certificate issued (or purportedly issued) under s.375A of the Migration Act to a review applicant. Special leave to appeal this decision was refused on 12 May 2017: Minister for Immigration & Border Protection v Singh & Anor [2017] HCATrans 107 per Keane and Gordon JJ. A similar conclusion was reached by the Federal Court in MZAFZ v Minister for Immigration & Border Protection & Anor [2016] FCA 1081; (2016) 243 FCR 1 (“MZAFZ”) in respect of a certificate under s.438 of the Migration Act. The Minister accepts that the 375A Certificate is, on its face, invalid: MZAFZ at [37] per Beach J.
The 375A Certificate:
a)stated:
i)that the disclosure, otherwise than to the AAT, of matters contained in folios 95-99 of Department file BCC2015/1139297 would be contrary to public interest; and
ii)that the AAT must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the AAT as constituted for the purpose of the review; and
b)covers integrity checks conducted by the Department in relation to financial documentation provided by Ms Brar.
In the Court’s view Singh and MZAFZ are distinguishable, and the AAT neither denied Ms Brar procedural fairness nor followed a procedure under the Migration Act that was not in accordance with the law, for the following reasons:
a)the AAT Decision makes it clear that the AAT did not act upon the 375A Certificate or the documentation to which it relates: MZAFZ at [40], [47] and [48] per Beach J, because of its earlier finding that Ms Brar was not a genuine temporary entrant under cl.572.223(1)(a) of Sch.2 to the Migration Regulations. That finding resulted in the AAT expressly deciding not to make any findings in relation to whether Ms Brar met the financial capacity requirements in cl.572.223(2)(c) of Sch.2 to the Migration Regulations: CB 154 at [39]. The AAT did not therefore consider the information contained in the integrity checks to form the reason or part of the reason for affirming the Delegate’s Decision, the AAT expressly saying that it had “decided not to make any further inquiries in relation to this issue or to make any findings in relation to cl.572.223(2)(c)”: CB 154 at [39]: CKG15 v Minister for Immigration & Anor [2017] FCCA 938 at [89] per Judge Manousaridis (“CKG15”). As was the case in CKG15, it is therefore not open to the Court to find, as the Federal Court did in MZAFZ, that the AAT acted on the 375A Certificate in “some unspecified way”: BEG15 v Minister for Immigration & Anor [2016] FCCA 2778; (2016) 315 FLR 196 at [65] per Judge Smith (“BEG15”); BEI15 v Minister for Immigration & Border Protection & Anor [2016] FCCA 2978; (2016) 314 FLR 392 at [52] per Judge Manousaridis (“BEI15”); and
b)in light of the AAT’s earlier findings that Ms Brar was not a genuine temporary entrant as required by cl.572.223(1)(a) of Sch.2 to the Migration Regulations, the documentation covered by the 375A Certificate was of no, or only of passing contextual relevance, to the AAT Decision: AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at [88] per Barker J (“AVO15”); BEI15 at [71] per Judge Manousaridis.
In any event, even if MZAFZ and Singh are not distinguishable, the Court would not grant prerogative relief in the exercise of its discretion because the knowledge of the 375 Certificate and related documents could not have made any difference to the outcome of the AAT Decision, Ms Brar having failed to meet the genuine temporary entrant criteria: AVO15 at [91] per Barker J; BEG15 at [67]-[68] per Judge Smith; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [28] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. Ms Brar did not thereby “los[e] any opportunity to advance her case by reason thereof” and did not suffer detriment or practical injustice: AVO15 at [91] per Barker J.
Conclusion and orders
The Court has concluded that the AAT Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 5 July 2017
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