Chegini v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 763
•22 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chegini v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 763
File number(s): SYG 2170 of 2019 Judgment of: JUDGE LAING Date of judgment: 22 August 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal constructively failed to exercise its jurisdiction by adopting an erroneous approach to the criterion in question – application dismissed Legislation: Migration Act 1958 (Cth) ss 499, 501CA
Migration Regulations 1994 (Cth) Sch 2, cl 500.212
Cases cited: CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1567; (2022) 179 ALD 330
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217; (2019) 272 FCR 528
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of hearing: 14 August 2024 Place: Sydney Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Brett Slater Solicitors Counsel for the First Respondent: Mr H Gao Solicitor for the First Respondent: HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2170 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALI NOUROUZZADEH CHEGINI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
22 AUGUST 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 LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). By that decision, the Tribunal affirmed a decision by a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
For the following reasons, the application must be dismissed.
BACKGROUND
The applicant is a citizen of Italy and Iran. On 24 March 2017, the applicant applied for the student visa that is the subject of these proceedings.
The Delegate refused the application on 21 June 2017. The Delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the Delegate found that this criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) could not be met.
On 8 July 2017, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant attended a hearing before the Tribunal on 12 December 2018.
On 23 July 2019, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which provided:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii)if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth) (Act). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:
(a)the applicant’s circumstances in his home country, potential circumstances in Australia and the value of the course to his future;
(b)the applicant’s immigration history; and
(c)any other relevant information.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter, the criterion in issue, the effect of Direction No. 69 and the evidence before it at [1]-[29] of its decision.
The Tribunal then reasoned as follows (at [30]-[33]):
30.The Tribunal considered the applicant’s circumstances in his home country overall and places some weight in his favour on his ongoing personal ties to his home country. However, the Tribunal also finds the applicant provided inconsistent evidence by claiming both that he left his job in order to study (in his application for a Student Visa) and that he was made redundant involuntarily. In addition, the Tribunal does not accept the applicant would be unable to provide evidence to prove his claims about having been made redundant if there is an ongoing claim against his employer, which he said was the reason he had time to study in Australia. The applicant’s own solicitor, who it was alleged communicated with the former employer and arranged court hearings, would be able to provide such evidence. For these reasons, the Tribunal is concerned the applicant has not been entirely honest about his employment situation in his home country and consequently, his reasons for applying to study in Australia when he had arrived as a tourist to visit friends. This weighs against him in the Tribunal’s assessment of whether he is a genuine temporary entrant for study.
31.In Australia the applicant has completed Certificates III and IV in Business Administration and a Diploma in Leadership and Management. He is currently undertaking an Advanced Diploma course. The Tribunal places some weight in the applicant’s favour on his study history in Australia; however, the applicant did not adequately explain his plans for the future and why he decided to study those courses in particular. The applicant stated in his Application for a Student Visa that he planned “to work in a multinational company in logistics and warehousing”. According to his evidence, he already had 12 years’ experience as a shift manager in warehousing. During the hearing the applicant advised he was interested in marketing jobs but he has not studied in that field specifically. The transcripts submitted for the courses the applicant has taken so far indicate he has completed units in the area of general business and management but not marketing. The applicant explained he wanted to improve his English and computer skills and claimed he would not be able to study in English in Europe. The Tribunal is not satisfied that this is sufficient reason to leave his wife and child for an extended period and pay for living and study expenses in Australia without working in order to study general business subjects.
32.Regarding the value of the business and leadership and management courses the applicant is studying to his future, the Tribunal is not satisfied the applicant has demonstrated the relevance to his past or proposed employment either in his home country or a third country; or the remuneration he could expect to receive in his home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study. As stated, the applicant has provided only generalised information about his reasons for wanting to study and his plans for the future. The Tribunal places minimal weight on the value of the applicant’s studies to his future employment in Italy. Since the applicant is already 55 years old and plans to continue working, it would have been more beneficial for him to seek new employment in his home country rather than take time out of the workforce for nearly four years1 in order to study Certificate and Diploma courses in Australia. If the applicant’s main aim was to improve his English and computer skills as he claimed, the Tribunal is of the view he could have done that in his home country.
33.The applicant’s immigration history indicates he came to Australia as a visitor from August to October 2016 for 36 days and returned in January 2017. He has remained onshore since that time and his family have not visited him, despite the applicant’s evidence that they had a visitor visa. Since the applicant has friends in Australia and had visited once before, he could have applied for a Student Visa off-shore. The Tribunal agrees with the Department that to change plans from a short visit of 30 days to a stay of more than three and a half years would involve a greater degree of planning. It is also concerning that the applicant claims to have no access to independent evidence about his redundancy and claims against his employer (other than a claim document prepared by him and an unverifiable email) when there is said to be an active matter proceeding in his home country in which the applicant is owned money. The Tribunal finds the applicant’s immigration history, together with his failure to provide adequate supporting evidence for claims made about his past employment weigh against him in this regard.
The Tribunal expressed the following conclusions in [34]:
34.The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant in deciding whether he meets the genuine temporary entrant criteria. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and therefore, the applicant does not meet cl.500.212(a).
The Tribunal therefore found that the applicant was unable to meet cl 500.212 and affirmed the Delegate’s decision (at [35]-[37]).
PROCEEDINGS BEFORE THIS COURT
On 22 August 2019, the applicant applied for judicial review of the Tribunal’s decision. The applicant ultimately relied upon an amended application filed on 5 August 2024 containing the following ground:
1.The Tribunal constructively failed to exercise its jurisdiction as it considered that if a majority of considerations weigh against the applicant then cl 500.212 was not met rather than determining the overall weight of factors favouring the clause being met and weighing them against the overall weight of those which were unfavourable.
The applicant relied upon Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217; (2019) 272 FCR 528 (Inderjit) (Rares, Burley and O’Bryan JJ), in which it was stated at [30]:
30.… if the legislation requires a decision-maker to have regard to more than one criterion or factor in making a decision, but gives no fixed weighting to any of them, then none of the factors has any presumptive or fixed weighting in relation to any or all of the other criteria.
The applicant also relied upon CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 (CRNL) (Colvin, Stewart and Jackson JJ). In that case, the Tribunal had identified each of the individual matters it was required to consider according to Ministerial Direction No. 90 and given them an individual weighting in the context of s 501CA(4) of the Act. The Tribunal had then stated that the application of the Direction “therefore” favoured non-revocation of cancellation. This conclusion was expressed without the Tribunal demonstrating that it actually weighed the various considerations against each other in coming to its conclusion. The Full Court considered (at [38]):
38.… The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.
At [43]-[44], the Full Court reasoned:
43.It is only thereafter that the first tier heading “CONCLUSION” is given. It is in that concluding section that the dispositive reasoning of the Tribunal is to be found. Because the Tribunal recognised in paragraph [113] that it was required to weigh “all the Considerations” (emphasis added), and because it had expressly gone through the process of considering each of the “other considerations in turn”, as explained above, it cannot be concluded that the Tribunal failed to consider the “other considerations”. However, there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation. Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various “other considerations”. After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.
44.The Minister submits that the Tribunal undertook the required task of balancing and evaluation by asking the rhetorical question, “What did the Tribunal do in reaching its conclusion not to revoke the cancellation of the visa if not an evaluation and balancing of the various factors to which it had ascribed weight in order to undertake exactly that task?”. There is no obvious or necessary answer to that rhetorical question, which therefore deprives it of any rhetorical force. The Tribunal must be taken at its word. What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed “another reason” why the cancellation should be revoked. That amounts to a failure to undertake the statutory task.
The applicant contended that a similar error was made in the present case. The applicant submitted that it follows from Inderjit that in some cases one factor may outweigh all the others when assessing whether cl 500.212 is met. A simple addition of factors for and against will not conform with the statutory task. The applicant submitted that the Tribunal in this case simply tallied the numbers for and against rather than engaging in an evaluation of the overall strength of factors favouring refusal and weighing them against those that favoured a finding that cl 500.212 was met. The applicant submitted that this was how [34] of the Tribunal’s decision should be read, without adopting a strained reading of that paragraph: CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1567; (2022) 179 ALD 330 at [52] (Wheelahan J).
Had I found that this is what the Tribunal did, then the application before the Court would have succeeded. Although, as the Minister submitted, CRNL concerned a different criterion to the present case, I accept that the Tribunal would have fallen into error had it performed its task in the manner contended by the applicant.
However, I am not ultimately persuaded that this is what the Tribunal did in the present case.
The Tribunal’s reference at [34] to the “majority of considerations” was perhaps unfortunate and capable of giving rise to different interpretations. However, I do not consider the most likely interpretation to be the Tribunal expressing that it had simply tallied the numbers for and against the applicant, without engaging in any overall evaluation. A more likely interpretation of that paragraph is the Tribunal expressing that although there was some evidence supporting that the applicant intended to remain in Australia temporarily, such evidence was limited and the overall force or preponderance of the evidence tended towards a finding that this was not the applicant’s genuine intention.
The Tribunal also expressed at [34] that it had “considered the applicant’s circumstances individually and cumulatively” before finding “on balance” that the considerations “somewhat in his favour” were outweighed by the considerations against him. As the Minister submitted, the words “on balance” within this context were indicative of the Tribunal undertaking, to use the applicant’s words, "an evaluation of the overall strength of factors favouring refusal and weighing them against those that favoured a finding that cl 500.212 was met".
That reasoning followed the Tribunal’s evaluation of the applicants’ circumstances at [30]-[33], which is set out above. In summary, the Tribunal found that although the applicant had some ties to Italy and had successfully completed some courses, he had not adequately explained his plans for the future nor the value of the courses in his circumstances. The Tribunal was also concerned that the applicant had not been entirely honest about his employment situation and by the evidence the applicant had given in relation to his immigration history.
The Tribunal’s reasoning at [34] also followed the Tribunal’s acknowledgement at [26] that Direction No. 69 indicated that the factors specified were not to be used as a “checklist” but rather to provide guidance “when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion” (at [26]). Although, as the applicant submitted, the Tribunal did not expressly refer to cl 2 of the Direction (which refers to the need to assess “on balance” whether the criterion is satisfied) or cl 5 (which refers to the need for “weighing up” of an applicant’s circumstances) this does not mean that the Tribunal’s approach was inconsistent with these provisions.
For the above reasons, I am not persuaded that the sole ground relied upon by the applicant is able to succeed.
CONCLUSION
It follows that the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 22 August 2024
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