Brar v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1346
•9 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1346
File number(s): ADG 64 of 2020 Judgment of: JUDGE GERRARD Date of judgment: 9 December 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – consideration of the genuine temporary entrant criterion – whether Tribunal failed to consider applicant’s evidence – whether Secretary breached s 352(4) – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 352(4), 418, 476
Migration Regulations 1994 (Cth) Sch 2 cll 500.212, 500.212(a), 500.212(b)
Cases cited: Ashraf v Minister for Immigration and Border Protection (2018) 261 FCR 97
BBS15 v Minister for Immigration and Border Protection (2017) 248 FCR 15
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294, [2005] HCA 24
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952
SZNZK v Minister for Immigration and Citizenship [2010] FCA 651
SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission/s: 27 November 2024 Date of hearing: 8 October 2024 Place: Adelaide Applicants: Self-represented first applicant with the assistance of a Punjabi interpreter Counsel for the First Respondent: Katherine Hooper Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 64 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KULDEEP SINGH BRAR
First Applicant
VIRPAL KAUR
Second Applicant
SAMAR BRAR
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
9 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
INTRODUCTION
Mr Brar and Ms Kaur (the applicants) seek judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), affirming an earlier decision of the first respondent (the Minister) to refuse to grant them Student (Class TU) (Subclass 500) visas (the visas). As will be explained, for the applicants to succeed in this Court, they must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal decision. On that basis, the application cannot succeed.
BACKGROUND
The applicants are citizens of India. They first arrived in Australia on 23 April 2009 as the holders of Subclass 572 Vocational Educational Sector student visas, which were granted on 9 January 2009 (Court Book (CB) 101). Subsequently, they have remained in Australia following the grant of various student visas and associated bridging visas (CB 101).
The third applicant is the child of the applicants and was born in Australia in 2015 (CB 14-15).
On 15 August 2017, the applicants applied for the visas (CB 10-31). In that visa application, Mr Brar indicated that he intended to study a Graduate Diploma of Agribusiness (CB 23).
The applicants appointed a registered migration agent as the authorised recipient in their visa application (CB 18).
On 25 September 2017, a delegate of the Minister refused to grant the applicants the visas. The delegate was not satisfied that Mr Brar met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) (CB 99-107). That criterion provides:
The applicant is a genuine applicant for entry and stay as a student:
(a) 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…
On 9 October 2017, the applicants applied to the Tribunal for review of the delegate’s decision (CB 108-110).
On 24 October 2019, the Tribunal wrote to the applicants’ migration agent inviting them to provide further information in a ‘Request for Student Visa Information’ form by 7 November 2019 (CB 123-124). The Tribunal also provided the applicants with a copy of Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications’ (Direction 69) (CB 125-129).
On 29 October 2019, the applicants were invited to attend a hearing scheduled for 6 January 2020 (CB 131-133).
On 30 October 2019, the applicants’ migration agent responded to the Tribunal, providing a completed ‘Request for Student Visa Information’ form. In this form, Mr Brar indicated that he had completed his Graduate Diploma of Agribusiness and had now enrolled in an Advanced Diploma of Business (CB 135-147), providing a Confirmation of Enrolment for same (CB 151). The applicants’ migration agent also requested an adjournment of the hearing date scheduled for 6 January 2020 (CB 134).
On 12 November 2019, the Tribunal wrote to the applicants’ migration agent in respect of the request for adjournment. The Tribunal agreed to the request and rescheduled the hearing to 24 January 2020 (CB 153-155).
On 22 and 23 January 2020, the applicants’ migration agent provided further information to the Tribunal, including a genuine temporary entrant statement and various certificates (CB 156-166, 177).
On 24 January 2020, Mr Brar attended the Tribunal hearing (CB 167, 170). Later that day, the Tribunal made a decision affirming the delegate’s decision not to grant the applicants the visas (CB 176-187).
On 7 February 2020, the applicants lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal began by identifying the visa decision under review, noting the applicants had applied for the visas on 15 August 2017. The Tribunal observed that, at the time of application, the visa contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Mr Brar did not claim to meet the criteria for the Subclass 590 (Student Guardian) visa (at [2]). The Tribunal explained that a delegate of the Minister had refused to grant the applicants the visas because the delegate was not satisfied that Mr Brar genuinely intended to stay in Australia temporarily (as required by cl 500.212 of Schedule 2 to the Regulations) (at [3]).
The Tribunal confirmed that Mr Brar appeared before the Tribunal on 24 January 2020 (at [10]). Mr Brar noted that his migration agent was ill and unable to attend the hearing (at [11]).
The Tribunal identified that the issue before it was whether Mr Brar was a genuine temporary entrant for stay in Australia as a student (as required by cl 500.212 in Schedule 2 of the Regulations) (at [14]). The Tribunal outlined the relevant legislative provisions in that regard (at [15]).
The Tribunal stated that, in considering whether Mr Brar satisfied cl 500.212(a), it was required to have regard to Direction 69. The Tribunal noted, however, that the factors set out in Direction 69 were not to be used as a checklist and were intended only to guide decision makers when considering Mr Brar’s circumstances as a whole (at [16]-[17]).
The Tribunal stated that it had read and had regard to information provided by the applicants to the Department, the delegate’s decision record, the information provided by the applicants’ migration agent on 7 November 2019, and other relevant material (at [18]-[22]).
The Tribunal noted that, from the documented evidence provided by Mr Brar, he completed a Graduate Diploma of Agribusiness in August 2018 (at [25]). The Tribunal also noted that he did not provide any further evidence of seeking to enrol in any courses from August 2018 until becoming enrolled in an Advanced Diploma of Business from 13 January 2020 (at [26]). The Tribunal placed weight on this 17-month period without study in considering Mr Brar’s genuine study intent (at [27]).
The Tribunal noted that Mr Brar and his family travelled to Canada to visit family from April 2019. The Tribunal confirmed Mr Brar gave oral evidence that they originally intended to travel for one month, but decided to instead stay in Canada for 88 days and one day in India, indicating that the Tribunal placed weight on this in considering Mr Brar’s genuine study intent (at [28]).
The Tribunal noted that, prior to August 2018, Mr Brar had continuously been undertaking courses of study. The Tribunal further noted that, instead of returning to India in his time of neither studying nor working, he undertook a three-month trip overseas and then only enrolled in a course of study after being advised of a hearing date before the Tribunal (at [29]).
The Tribunal also placed weight on the documented and oral evidence of bank deposits and land ownership in India, alleged financial support from Mr Brar’s father, the impracticality of undertaking the current course of study, as well as Mr Brar’s statement of intention to return to India at the completion of his course in January 2021 (at [30]-[33]).
The Tribunal asked Mr Brar of any circumstances in India that may induce him to apply for a student visa as a means of remaining in Australia indefinitely. He provided oral evidence that there are no reasons why he cannot return to India and that he does not have any issues concerning military service, political or civil unrest. The Tribunal made no findings regarding evidence of Mr Brar’s circumstances in his home country in that respect (at [34]-[35]).
The Tribunal outlined that for Mr Brar to meet cl 500.212(b) of Schedule 2 to the Regulations, the Tribunal must be satisfied that he intends to comply with any conditions subject to which the visa is granted. The Tribunal noted it had regard to Mr Brar’s record of compliance with any previous visa conditions, and his stated intention to comply with any conditions to which the visa may be subject (at [36]).
The Tribunal was ultimately not satisfied that Mr Brar intended to genuinely stay in Australia as a student as required by cl 500.212 of Schedule 2 to the Regulations (at [38]-[39]).
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicants visas (at [40]-[41]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 7 February 2020 contains four grounds of review as follows (without alteration):
1.Administrative Appeal Tribunal made Jurisdictional Error by not considering my previous study and progression in my study. Previously I have done Diploma Horticulture, Certificate IV and Diploma of Management, Diploma and Advance Diploma of Marketing, Diploma of Agribusiness Management, Advance Diploma of Agribusiness Management, Graduate Diploma of Agribusiness.
2.Administrative Appeal Tribunal made Jurisdictional Error by not considering my current enrolled study.
3.Administrative Appeal Tribunal made Jurisdictional Error by not considering our social and economic circumstances in my home country. Our parents and siblings are living in our home country. We have enough finances to settle in our home country.
4.Administrative Appeal Tribunal made Jurisdictional Error by not considering our financial ties to our home country.
The applicants filed an affidavit with that judicial review application on 7 February 2020 which annexed a copy of the Tribunal’s decision, the delegate’s decision and extracts from the applicants’ passports.
Mr Brar appeared before the Court on 8 October 2024 without legal representation but with the assistance of a Punjabi interpreter.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicants on 7 February 2020 (the affidavit being taken as read and in evidence at the hearing on 8 October 2024), a Court Book numbering 187 pages (marked as Exhibit 1), an affidavit of Maria Pappas filed on 17 October 2024, written submissions filed on behalf of the Minister on 2 April 2024 and 13 November 2024, and written submissions filed on behalf of the applicants on 27 November 2024.
Mr Brar was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [24] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952 at [40]. Accordingly, at the hearing of this matter on 8 October 2024, Mr Brar was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 354-355, [2005] HCA 24 at [207]-[208]);
(e)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(f)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28, [2022] FCAFC 3 at [33]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648, [2010] HCA 16 at [131]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445, [2014] FCAFC 1 at [44]).
However, it was also explained to Mr Brar that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.
Against this background, Mr Brar initially told the Court that the Tribunal had either ignored or misunderstood that he was a continuous student. In advancing this argument, he took issue with the Tribunal’s finding in respect of the length of the gap in his studies. However, when clarifying the period of his study, he accepted that the length of the gap was that stated by the Tribunal. He then pressed that the gap in his studies was the only matter that the Tribunal took into account. He also argued that all of his studies were related and that ‘according to the rules, I completed my studies’. When asked to speak to the grounds advanced in his application, Mr Brar told the Court that he did have genuine funding from his parents and that he intended to return to India because he had property, his parents and his other family there. He did not wish to say anything in reply to the Minister’s oral submissions.
CONSIDERATION
As outlined above, there are four grounds of review advanced in these proceedings. Noting that Mr Brar was unrepresented in this matter, the Court has endeavoured to interpret his grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection(2015) 238 FCR 158, [2015] FCA 1392). Having regard to what he has said in the application and his submissions before the Court, it appears that Mr Brar’s contentions are that the Tribunal failed to properly consider his previous study and current enrolment, and his financial stability and ties to India. The Court takes this as a claim that the Tribunal either failed to consider relevant evidence relating to those matters or failed to properly engage on an intellectual level with that evidence.
The issue before the Tribunal was whether Mr Brar met the mandatory criteria for the grant of the visa. In Mr Brar’s case, the Tribunal was not satisfied that he met the criteria in cl 500.212 which is a requirement that he is a genuine applicant for entry and stay as a student. In considering whether or not the Tribunal was so satisfied, it was required to take into account the particular factors identified in Direction 69. Part 2 of Direction 69 provides as follows:
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a. considering the applicant against all factors specified in this Direction; and
b. considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant’s circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a. information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b. the applicant or a relative of the applicant has an immigration history of reasonable concern;
c. the applicant intends to study in a field unrelated to their previous studies or employment; and
d. apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways;
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance.
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
It is clear from the above that the Tribunal was required to consider any evidence Mr Brar put forward in respect of his past study, the value of his current study and his circumstances in India (including his personal ties and economic circumstances). A failure to consider these matters, or to properly engage with the evidence relevant to an assessment of those matters, might indicate that the Tribunal’s decision does involve jurisdictional error. The Minister acknowledged as much in written submissions observing that the obligations imposed by Direction 69 constituted “an essential or inviolable limitation on the power” conferred by the Act (citing YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39]) and that a failure to comply with Direction 69 which was sufficiently material may establish jurisdictional error (citing Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646 at [29]).
In this matter, the Minister submitted that there was evidence the Tribunal did consider Mr Brar’s evidence and submissions relevant to the factors identified in Direction 69. Specifically, the Tribunal considered:
(a)Evidence of Mr Brar’s past completion of courses (citing [19](e)-(j), [21] and [29] of the Tribunal’s reasons);
(b)Evidence of Mr Brar’s current enrolment (citing [19](m), [26] and [29] of the Tribunal’s reasons); and
(c)Evidence of land and other assets held by Mr Brar and his family in India (citing [21] and [30] of the Tribunal’s reasons), and his oral evidence that in India he has “everything” whereas “in Australia he has nothing” (citing [33] of the Tribunal’s reasons).
The paragraphs of the Tribunal decision referred to by the Minister make it clear that the Tribunal clearly considered and engaged with the evidence relating to Mr Brar’s historical and current study in Australia, as well as the evidence relating to his financial and personal ties to India. In fact, it did so comprehensively. To the extent that Mr Brar’s grounds seek to assert otherwise, those grounds must fail.
The Minister submitted that, before the Tribunal, Mr Brar had advanced very little by way of submissions directed towards the Direction 69 factors. There is clearly force to the Minister’s submission in this respect when one has regard to the submissions which were advanced by Mr Brar’s migration agent prior to the Tribunal’s hearing. After setting out some brief background, the submissions addressing the relevant factors in their entirety are as follows (CB 158):
…
The applicant’s circumstances in their home country:
According to Applicant, he is currently in Australia with his wife and child. He has worked as Agriculture Technician. He wants to start her own nursery business in his home country. He has gained enough knowledge in this area.
The applicant’s potential circumstances in Australia:
According to applicant he has done most of his study in Australia and he wants to start his nursery business in his home country. Before to go back to home country he wants to gain more knowledge about business. This is the reason he has choose Advance Diploma of business as further study. If applicant will be granted student visa then she can finish course within timeframe.
Value of the course to the applicant’s future:
According to applicant, Advance Diploma of Business will give his skills and knowledge of how actual business work in various environments and these skills will assist him to start his own nursery business. If he will have enough knowledge and education then he can handle his business in proper manner. After finishing his study he will go back to his home country and will start his business.
Any other relevant matters:
Previous Education History: Applicant always complies with all student visa conditions and successfully completed his previous studies.
Brief sum up:-
At last, I can say that during applicant’s stay in Australia he always studied hard and completed all enrolled courses.
…
Mr Brar had provided considerably more information in the statement accompanying his original application for the visa three years earlier. That statement ran for four pages and addressed his reasons for his choice of course and provider, why he had chosen to study in Australia rather than India, his planned living arrangements in Australia, the relevance of the course to his academic/employment background, the relevance of the course to his future career/education plans, evidence of his economic situation in India, and his ties to India.
The Minister submitted, however, that this statement was substantially overtaken as, by the time of the Tribunal review, Mr Brar had completed the course he wished to undertake. That is, while the original submissions addressed the relevance of the Graduate Diploma of Agribusiness course relied upon in respect of the application, Mr Brar had completed this course in August 2018 and the subsequent submissions were made in support of his subsequent enrolment in an Advanced Diploma of Business.
Counsel for the Minister also submitted that it was clear in any event that the Tribunal did have regard to the submissions advanced with the application to the extent that they remained relevant. This was evident from the Tribunal’s statement at [18] of its reasons that it had read and had regard to information provided by the applicants to the Department.
The Court queried with counsel for the Minister whether this could be said about Mr Brar’s original claim that he had been offered a job in India by a person ‘working in a senior position in the irrigation department in India’ whom Mr Brar claimed to have met in a chance meeting.
The delegate’s decision states that Mr Brar provided evidence of a job offer for the position of farm manager from Brar Agricultural Farm dated 2 October 2014 with a date of joining of August 2017 (CB 103). That document did not appear in the Court Book and the Court invited the Minister to file an affidavit attaching that document or deposing as to whether it was before the Tribunal. Both parties were also invited to file additional submissions in respect of this.
The Minister filed an affidavit of Maria Pappas affirmed on 17 October 2024 confirming that Ms Pappas had received instructions that a document “capable of being described as a job offer” was located on a Department file concerning an application made by Mr Brar for a student visa on 11 November 2014. However, Ms Pappas deposed that neither that document nor any other document capable of being described as a job offer was located on either the Department or Tribunal files relating to the application under review in this Court.
In submissions filed following the hearing, the Minister accepted that the evidentiary position is that the Tribunal did not have before it the job offer itself. However, the Minister noted that the Tribunal did have the delegate’s summary of the job offer and Mr Brar’s description of the job offer. Submissions were also received from Mr Brar following the hearing.
The Minister contended that two issues arose from the evidentiary position.
(a)Did the Secretary breach s 352(4) of the Act and if so did that breach cause the Tribunal to fall into jurisdictional error?
(b)Did the Tribunal fail to consider evidence or a claim by the applicant or matter prescribed by Direction 69 in a manner demonstrating jurisdictional error?
Section 352(4) of the Act relevantly provides:
(4) The Secretary must, as soon as is practicable after being notified of the application, give to the ART each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.
The Minister relied upon a line of authority which held that the Secretary’s failure to perform the duty in respect of s 418 (the equivalent provision in the former Part 7) did not invalidate a subsequent decision by the Tribunal. The Minister relied upon WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413 at [62]-[64]; SZNZK v Minister for Immigration and Citizenship [2010] FCA 651 at [20]; SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123 at [65]-[66], [73] (SZOIN); Ashraf v Minister for Immigration and Border Protection (2018) 261 FCR 97 at [63]-[64]; and BBS15 v Minister for Immigration and Border Protection (2017) 248 FCR 159. The effect of those authorities is that a failure by the Secretary to comply with s 352(4) does not of itself constitute jurisdictional error. The Minister accepted, however, that such failure to comply might lead to jurisdictional error if an applicant is disadvantaged in the conduct of their review before the Tribunal as a result of being effectively misled regarding the materials in evidence before the Tribunal.
Having regard to the circumstances in this matter, the Minister first submitted that it was reasonable for the Secretary to determine that the job offer was not relevant to the Tribunal’s review notwithstanding it had been accessed and referred to by the delegate. The Minister described the job offer as a “historical document” related to an earlier successful visa application. The document was not submitted by Mr Brar in respect of the current application, although Mr Brar’s submission did refer to the existence of the job offer. The Minister submitted that the reference in the submissions satisfactorily conveyed the existence and substance of the job offer and the secretary could reasonably have taken the view that the job offer itself did not add anything further. Relying upon SZOIN at [54], the Minister submitted that the job offer was not “clearly critical” to Mr Brar’s claim.
Conversely, Mr Brar submitted that the job offer was “an essential and pivotal factor” in the context of the application for the student visa. He submitted that it was a “vital part” of the evidence in respect of his future intentions and “formed an integral part of the applicant’s case”. In this respect, he argued that the failure to provide this “crucial piece of information” to the Tribunal constituted a breach of s 352(4).
In the Court’s view, Mr Brar has exaggerated the importance of the job offer. Whilst he relied upon the job offer in his initial application, it was thereafter never mentioned again. His agent did not mention it in his written submission to the Tribunal, and he appears to have made no mention of it to the Tribunal in his oral evidence. This is not surprising as the job offer appeared to have long since expired by the time of the Tribunal’s hearing.
Having considered the matter, the Court is of the view that the document was not relevant to the Tribunal’s review. The Tribunal did have both Mr Brar’s original submission where the 2014 job offer is mentioned, as well as the delegate’s decision. However, by the time the Tribunal came to make its decision in 2020, the 2014 job offer (which indicated a date of joining of August 2017 or as agreed to) had long since expired. The Court also accepts the Minister’s submission that Mr Brar’s subsequent submissions to the Tribunal did not refer to this job offer and instead stated Mr Brar’s intention to establish his own nursery business. The Court is of the view that Mr Brar’s omission of any reference to the job offer in his written submissions and oral evidence to the Tribunal was deliberate. That is, he did not refer to the job offer because his expressed intention was to start his own nursery business. The Court accepts the Minister’s submission that this was inconsistent with taking up the purported, and by that time expired, job offer.
For the same reasons, the Court finds that the Tribunal did not fail to consider evidence or a claim by Mr Brar. The reasonable inference is that, by the time the Tribunal heard the matter, Mr Brar had not submitted a copy of the job offer and did not rely on the job offer in support of his application. Instead, he relied on his stated intention to start his own business. The Court accepts that the Tribunal read Mr Brar’s submissions and was aware of the historical claim of the job offer contained within those submissions. It did not refer to that job offer because it simply had no continuing relevance to the case put by Mr Brar or the decision the Tribunal was tasked with making.
For these reasons, the Court finds that there was neither a breach of s 352(4) by the Secretary nor a failure by the Tribunal to consider evidence relied upon by Mr Brar.
CONCLUSION
The application for judicial review, supporting affidavit and additional submissions advanced by Mr Brar at, and after, the hearing have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 9 December 2024
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