Casarine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 239
•14 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Casarine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 239
File number(s): SYG 1237 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 14 March 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for judicial review - Student (Class TU) (Subclass 500) visa – Whether the Tribunal misunderstood cl 500.212(a) – Whether the applicant’s satisfied the genuine temporary entrant criterion – application is dismissed – Legislation: Migration Act 1958 ( Cth)
Migration Regulations 1994 (Cth) Schedule 2 cl, 500.212
Cases cited: BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25
Interjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217
Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259
NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 985
Saini v Minister for Immigration and Border Protection [2016] FCA 858
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 4 March 2024 Date of hearing: 4 March 2024 Place: Parramatta Counsel for the Applicants: Mr Jones Solicitor for the Applicants: Northam Lawyers Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 1237 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PATRICIA DA SILVA CASARINE
First Applicant
DIEGO GOMES SANTOS
Second Applicant
THALITA CASARINE SANTOS
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The first applicant is to pay the first respondent’s costs fixed in the amount of $8000.00.
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 D HUMPHREYS
INTRODUCTION
The applicants are citizens of Brazil. The first applicant is the primary applicant (“the applicant”) of a Student (Temporary) (class TU) (subclass 500) visa (“the visa”). The applicant’s husband (“the second applicant”) and the eldest child were included as dependant applicants in the visa application.
The first applicant first arrived in Australia in August 2012 as the holder of a student visa to study English.
In May 2013, the first applicant was granted a second student visa to complete a general English course and a Certificate IV in International Trade. She completed these courses.
In March 2014, the first applicant was granted a dependant student visa as the second applicant’s family member.
In September 2015, the first applicant was granted a third student visa to study a Diploma of Christian Ministry and Theology. The applicant completed this course.
In August 2016, the applicant gave birth to the first child of the marriage, Thalita, in Australia.
In July 2017, the applicant commenced a Certificate III in Early Childhood. The applicant completed this course in 2018.
In July 2018, the first applicant applied for a fourth student visa to study a Diploma of Early Childhood Education and Care.
On 8 August 2018, a delegate of the Minister refused the first applicant’s fourth student visa. The delegate of the Minister was not satisfied that the applicant was a genuine temporary entrant as required by cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 30 April 2020, the Tribunal affirmed the decision not to grant the applicant a fourth student visa.
The applicant now seeks judicial review of the Tribunal’s decision.
The Court notes that in September 2018, the applicant gave birth to a second child of the marriage in Australia. The second child has a serious medical condition and since April 2019 has been residing with her grandmother in Brazil.
For the following reasons the application must be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal decision is relatively short. After setting out the background at [1] - [9], the Tribunal instructed itself as to the relevant legislative requirements contained in cl 500.212 of the Regulations and Direction No 69 "Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications” (“Direction No 69”) at [10] - [13].
The Tribunal noted at [24] that both the applicant and the second applicant gave oral evidence at the Tribunal that they wished to live in Australia permanently, as Brazil did not have a "good economy" and there were more job opportunities in Australia with educational qualifications. The Tribunal noted at [32] that the impression given and expressly stated at the hearing was that the applicants did not contemplate returning to their home country and were using the student visa program to stay in Australia.
The Tribunal noted that the applicant had a degree in Foreign Trade from the Italo Brasilerio University in Brazil prior to travelling to Australia. Since then, the applicant has pursued Vocational Education and Training ("VET") courses "well below her university accomplishments".
The Tribunal noted that the applicants both have strong economic and family ties in Brazil. The applicants own an apartment in Brazil. The applicants’ second child and other immediate family members reside in Brazil. The Tribunal placed some weight on these matters.
However, the economic situation in Brazil was worse than Australia. The second applicant has established a profitable cleaning business and can provide for his family in Australia. This was a significant incentive not to return to Brazil.
The Tribunal noted at [41] that the applicant, who is a temporary entrant, had circumstances which supported a genuine intention to remain in Australia temporarily, recognising this possibility may change over time to utilise lawful means to remain in Australia. Whilst the applicant demonstrated an intention to remain in Australia, they "did not articulate means of doing so outside the student visa program".
The Tribunal noted at [43] that the applicant had travelled outside of Australia and had indicated that she had never been refused a visa. The Tribunal accepted this evidence and did not make any adverse findings concerning the applicant's immigration history outside Australia.
The Tribunal was satisfied at [42] that the applicant's circumstances indicated that the student visa program was being used to maintain ongoing residence in Australia, as a result, the applicants did not genuinely intend to stay in Australia temporarily. Accordingly, the Tribunal affirmed the decision not to grant the first applicant her visa.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review now relied upon are set out in an Amended Initiating Application filed on 1 October 2020. They are as follows (less particulars):
(1) The Tribunal made a jurisdictional error in relation to the immigration history of the applicant.
(2) The Tribunal made a jurisdictional error in holding against the applicants the fact they did not articulate a lawful means of remaining in Australia outside the student visa program.
GROUND ONE
Ground one is a complaint in respect of the findings at [43] of the Tribunal’s decision, that the Tribunal accepted evidence that the applicant had observed the immigration laws of other countries and concluded that it did “not make any adverse findings concerning the applicant’s immigration history outside of Australia”.
It was submitted that Direction No 69 had the effect that the applicant’s immigration history outside of Australia was a relevant factor but did not have the effect that it was only a matter that could weigh against the applicants satisfying the genuine temporary entrant criteria. It was submitted, rather, that it was a matter which could have weighed in favour of the applicants satisfying the criterion. A failure by the Tribunal to understand and apply Direction No 69 could result in the Tribunal exceeding its jurisdiction: (see; Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 985 at [25] and [61] – [63] per Mortimer J).
As it was a relevant matter to the assessment of, without necessarily weighing against, satisfaction of the genuine temporary entrant criterion, the Tribunal was therefore obliged to give proper, genuine and realistic consideration to cl 500.212(a)(ii): (see; Interjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Interjit”) [2019] FCAFC 217 at [29]). The Tribunal failed to do so in that it treated the matter as at most something which could weigh against the applicant’s satisfaction of genuine temporary entrant criterion and not something which could weigh in favour of that satisfaction.
The respondent submitted that at [43] the Tribunal merely stated it did not draw any adverse findings from the applicant’s immigration history from overseas. The absence of a negative or adverse finding does not preclude the existence of a neutral or positive finding. Indeed, the Tribunal’s comments that it did not draw adverse findings on the applicant’s overseas immigration history most likely implied that it attributed a neutral or positive weight to this factor. For these reasons, it is not logical to interpret [43] as a finding that the applicant’s overseas migration history could at most weigh against the applicant’s satisfaction of the genuine temporary entrant criterion.
In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539 at [46] the following was said:
The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:
It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].
A fair reading of the totality of the Tribunal’s reasons reveals that it proceeded to undertake an orthodox analysis of each of the reasons prescribed under Direction No 69. The Tribunal noted at [43] that the applicant had travelled to other countries and had never been refused an application for a visa. The Tribunal accepted that the applicant had complied with migration laws of other countries and accordingly, it did not make any adverse findings concerning the applicant’s immigration history outside of Australia.
The Court agrees with the submission of the respondent that the finding was confined to the specific facts of the applicant’s immigration history under paragraph 14a of Direction No 69. The weight to be given to the particular finding is a matter for the Tribunal: (see; NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 at [11]). The Court also agrees that Direction No 69 does not dictate the weight to be given to a particular factor: Inderjit at [36].
The Court is not satisfied of the claim that the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s overseas immigration history. It is clear that it did. It considered the matter as part of a discrete inquiry: (see; Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 at [32]). The Tribunal noted the evidence and concluded that the applicant “appears to have complied with migration laws of other countries”. To complain that the Tribunal did not make a positive finding in relation to the applicants, based on their overseas immigration history, amounts to no more than seeking impermissible merits review: (see; Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259 at [272]).
Ground one has no merit.
GROUND TWO
Ground two is a complaint that the Tribunal misunderstood cl 500.212(a) of the Regulations because it referred to the fact that the applicants did not articulate a lawful means of remaining in Australia, outside the student visa program, as a matter suggesting the genuine entrant criterion was not satisfied.
The applicants relied upon Saini v Minister for Immigration and Border Protection [2016] FCA 858 (“Saini”) at [30] per Logan J, where his Honour held in relation to a predecessor of cl 500.212(a):
But if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention “genuinely to stay in Australia temporarily”. What is required is an evaluation by the decision-maker of intention as at the time of decision.
The correctness of Saini was upheld by the Full Court in Interjit at [38] – [39] where it was stated that the settled intention referred to by Logan J was not one “necessarily negating any capacity of a decision-maker to find that the applicant for the visa genuinely intended to remain in Australia temporarily” but rather one which would ordinarily “may be expected to lead a decision-maker to closely examine whether its presence should result in the decision-maker not being able to form the requisite status satisfaction to justify the grant of a visa”.
It was submitted that the Tribunal effectively suggested that a settled intention later to seek a specific visa other than a student visa, which could include a permanent visa, weighed against satisfaction of the genuine temporary entrant criterion. The Tribunal went against those cases by relying upon the absence of a settled intention to seek another visa in order to remain in Australia suggested the criterion was not satisfied.
On behalf of the respondent, it was submitted that the contention in ground two is a misreading of the Tribunal’s reasons. The Tribunal did not infer from the applicants’ lack of means to obtain permanent visa as an indication they were not genuine temporary entrants. Rather, the applicants’ own evidence set out in [36] and [38] of the Tribunal’s decision was that they wished to stay in Australia permanently. It was thus open to the Tribunal to place significant weight on that express intention as an indication that the applicants did not have a genuine intention to stay in Australia temporarily.
The Tribunal reached this conclusion based on a number of factors, including the amount of time they had spent in Australia. The Tribunal also considered the applicant’s vague evidence as to value of the proposed course of study to her future and the fact that the applicant was studying at a lower-level VET course, when she had already obtained a bachelor’s degree in Brazil. The Tribunal also noted the applicant’s relative economic circumstances in Australia as compared to Brazil were relevant factors to consider in determining if the applicants were genuine temporary entrants.
These factors, together with the fact that the applicants could not identify how they would remain in Australia lawfully, aside from using the student visa program, led the Tribunal to conclude that they were using the student visa program to maintain ongoing residence in Australia.
The Court is satisfied that the Tribunal correctly instructed itself as to the relevant matters that it needed to consider in determining whether or not the applicants were indeed genuine temporary entrants for the purposes of study. The Tribunal set out fully in its reasons the various matters it was required to consider, including those matters considered under Direction No 69.
It was the totality of those matters which led the Tribunal to the conclusion that it reached. That conclusion was that the applicants were using the student visa program primarily to maintain ongoing residence in Australia.
The Court is satisfied that the fact the applicants were unable to articulate, given the amount of time they had already been in Australia, any other lawful means by which they could maintain residency was a relevant matter for the Tribunal to consider in coming to its overall conclusion. It was a genuine matter that the Tribunal was entitled to consider closely as part of the decision-making process to reach the requisite status satisfaction to justify the grant of the visa. The Tribunal was unable to reach that conclusion based on the totality of the evidence. The Court is not satisfied that the Tribunal misunderstood or did not instruct itself correctly in relation to the process it should follow to come to that conclusion.
Ground two has no merit.
CONCLUSION
Neither of the grounds of judicial review has merit. The application must be dismissed. Costs should follow the outcome.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate: Hopeful Mukucha
Dated: 14 March 2024
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