De Souza Barbosa v Minister for Immigration

[2020] FCCA 3133

FEDERAL CIRCUIT COURT OF AUSTRALIA

DE SOUZA BARBOSA v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3133

Catchwords:
MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where applicant was not found to be genuine temporary entrant – whether applicant denied procedural fairness – whether Tribunal failed to consider relevant information – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.5, div.5, ss.360, 476

Migration Regulations 1994 (Cth), cl.500.212 of sch.2

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant: BRUNO DE SOUZA BARBOSA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 9 of 2020

Judgment of: Judge Kendall

Hearing date: 16 November 2020

Date of Last Submission: 16 November 2020

Delivered at: Perth

Delivered on: 19 November 2020

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Ms J Tran

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 9 of 2020

BRUNO DE SOUZA BARBOSA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Brazil. He first arrived in Australia on 26 August 2014 on a student visa (Court Book (“CB”) 54). The applicant was subsequently granted a further student visa.

2. On 14 December 2017, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”)(CB 1-44). The applicant was enrolled in a General English Course, a Certificate III in Bricklaying/Blocklaying and a Certificate IV in Building and Construction (Site Management).

3. On 13 March 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 48-56). The delegate was not satisfied that the applicant was a genuine temporary entrant as per cl.500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”).

4. On 3 April 2018, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision.

5. On 12 April 2019, the Tribunal invited the applicant to provide information in relation to his current enrolment status and the genuine temporary entrant criterion (CB 84-90). The applicant responded to that invitation with a variety of information and documents (CB 91-122).

6. On 1 June 2019, the applicant sent further documents to the Tribunal.  These included a current confirmation of enrolment and a written statement (CB 127-135).

7. The applicant attended a hearing before the Tribunal on 10 June 2019 (CB 137-140).

8. On 8 December 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 148-163).

9. On 8 January 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.

Tribunal’s Decision

1. The Tribunal’s decision is 16 pages long and spans 62 paragraphs. Six pages account for the full extract of Direction 69.

2. It is noted that the Tribunal’s paragraph numbers are out of sequence. While the final paragraph number is 59, there appears to have been a duplication of three paragraph numbers (specifically, 55-57). For ease of reference, and given that the duplication occurs on the final page of the decision, the Court will refer to the paragraphs sequentially (i.e., the final paragraph will be [62] – even though the Tribunal references it as [59]).

3. The Tribunal began by identifying the type of visa that the applicant had applied for.  It then summarised the delegate’s reasons for refusing the visa and confirmed that the applicant had attended a hearing before the Tribunal (at [1]-[4]).

4. The Tribunal noted that it had considered the Departmental file (at [6]) and added:

   5. Prior to the hearing the applicant provided the following to the Tribunal:

   •Decision of the delegate of the Department;

   •Photos of pages of the applicant’s passport;

   •A letter from the applicant dated 29 March 2018;

   •Letters confirming enrolments;

   •Certificates conforming completion of English courses;

   •Confirmations of enrolment;

   •Documents showing a purchase of property in Brazil;

   •Academic transcript in Bachelor of Administration, Brazil, and

   •The information sought by the Tribunal pursuant to s 359(2) of the Act.

5. The Tribunal then identified that the issue before it was whether the applicant genuinely intended to stay in Australia temporarily for study (at [8]).  

6. The Tribunal summarised the relevant legal principles as follows:

   Genuine applicant for entry and stay as a student (cl.500.212)

   9.      Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)     the applicant’s circumstances; and

   (ii)    the applicant’s immigration history; and

   (iii)   if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)    any other relevant matter; and

   (b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)     the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)    the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)     of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

   10. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

   •the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   •the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   •if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   •any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

   11. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

7. When referring to the applicant’s circumstances in his home country, the Tribunal noted that:

   a)the applicant’s mother and half-sister live in Brazil (at [12]). The applicant also has an apartment in Brazil.  The applicant initially said that this was an investment property but later said that his half-sister lived in it. The applicant planned to return to Brazil, renovate the apartment and sell it to fund his business (at [13]);

   b)the applicant sold his car to pay for his course (at [14]);

   c)the applicant’s father (who is now deceased) suggested that the applicant complete an administration in business course (at [15]). The applicant completed a Bachelor of Business Administration in Brazil from 2009-2013 (at [17]); and

   d)the applicant had previously worked as a director in a shopping centre – where he was in charge of a number of matters – and earned approximately $1250 a month, plus commission (at [16]).

8. The Tribunal then stated:

   19. The Tribunal accepts that the applicant has some ties to Brazil in his mother still living there and in their status in the community there. The Tribunal places a little weight on this factor in his favour in determining whether the applicant has any incentive to return to Brazil.

   20. The applicant is not subject to national service and there is no political or civil unrest or economic reasons that would be cause for the applicant not to return to Brazil, or provide an incentive for him not to return, and the Tribunal gives these factors some weight in his favour.

9. The Tribunal then considered the applicant’s study history and found that, initially, the applicant intended to study a Bachelor of Business at Cambridge International College. The Tribunal heard that the applicant was subsequently informed that his course was only offered in Melbourne, resulting in the applicant withdrawing from the course as he did not want to relocate “due to the weather in Melbourne” and because his sister lived in Perth (at [21]-[23]).

10. The Tribunal accepted (at [24]) that, instead of going to Melbourne, the applicant remained in Perth and:

    a)   completed 3 further English courses between November 2015 and 2018;

    b)     enrolled in a Certificate III in Bricklaying at Everthought Education College, which he commenced in August 2018 (and should have completed in July 2020); and

    c)   enrolled in a Certificate IV in Building Construction at Everthought Education College (which was to commence in August 2020 and is to be completed by August 2021).

11. The Tribunal then recorded some of the applicant’s motives for changing his course of study from commerce to construction, relevantly as follows:

    25.He told the Tribunal at the hearing that he originally wanted to study a course in business because he had grown up in a family who had a business. He had already studied in the area of the administration of business, and he has always wanted to have his own business. However, when he arrived in Australia he saw how construction business and the industry operated in Australia. He wanted to take some construction knowledge back to Brazil. He said that in Brazil courses in construction and the administration of construction are not offered. Any knowledge of that industry is handed down from generation to generation within the industry.

    26. He had decided to change course, rather than look around for another course in business, when Cambridge told him they were cancelling the Business course in Perth.

    27.The applicant told the Tribunal at the hearing that he grew up in a family who had a business background. He said that when he was at school, during the holidays, he would go to his family business and accompanied his father to client appointments. While his family did not force him into running a business, he felt that because he had been brought up in a business, he should have one too. His mother and father ran an accounting business, and they worked for family and friends. His mother still runs an accounting business from home.

    28. He was asked what business he thought he would be running, and he told the Tribunal at the hearing that he knew nothing on the than accounting and administration, so that’s what he thought he would be running. Although the applicant told the Tribunal this, the Tribunal notes that the applicant does not appear to have completed any courses in accounting itself. Neither does he appear to have any specific certification in this area.

12. The Tribunal then stated:

    29. After hearing the applicant’s evidence at the hearing of this matter and reviewing the materials he has provided to the Tribunal and Department, it has been difficult to ascertain exactly why the applicant came to Australia, other than he wanted to learn English. As has been described above, the applicant told the Tribunal at the hearing that he came to Australia to study a business course, because he felt that that is what he would be doing – running a business. However, it is noted that having just completed a bachelor course in business in Brazil, the applicant intended to come to Australia to complete the same course. While the Tribunal accepts that students may wish to go to a different country to study in a different language to gain some advantage over other employees in their home country, and to gain an international qualification, the applicant did not explain to the Tribunal why he did not complete his first bachelor of business that he had undertaken in Brazil, in Australia, and why he intended to complete a second Bachelor of Business almost as soon as he had finished his first. The Tribunal also notes that despite the applicant saying that he thought that he would eventually run a business in accounting, he did not explain why in fact he was not doing an accounting course.

    30. Being part way through a bricklaying course, the applicant does not plan to be a bricklayer in Brazil, but will be a supervisor. He will hire people and build houses. His sister who lives in Australia has experience in the construction industry; she used to work in the administration area of a building company building large civil projects. She will not return with him to Brazil, so they will not actually work together, however he explained that she has good contacts, so he hopes she can introduce him to them, as he knows she is still in touch with them. While this may be helpful generally, the applicant did not explain how contacts in a large civil building company would assist him in commencing or running a small domestic building company. The Tribunal can place no weight on the applicant having any such contacts.

    31. He would like to build small things first, such as small houses and renovations, and then he will move to larger projects, building buildings of several stories. He plans to open his company in Rio de Janeiro. He said that the building industry there at the moment is always developing – there is a large population so he believes there will always be building work. The applicant said in his response to the Tribunal’s request for information pursuant to s 359(2) of the Act that he had “researched the Brazilian market and noticed there is a demand and growth in the construction area so I decided to take this opportunity and invest on skills I will need to have my own construction company.” The applicant has not said where he found this information, and whether it will be relevant at the time he returns to Brazil, which, if he stays and completes his enrolled courses, will be at least towards the end of 2021. The applicant has said, in his letter to the Tribunal dated 29 March 2018, that he has been keeping up with economic and political news on the Internet and saw the expected growth in the construction industry in Brazil. He has surmised that the prospects for the following years in Brazil are optimistic and that this means that there will be further building. While the Tribunal accepts that the applicant has performed some general research about the general economy in Brazil, and inferred that that means that there will be building opportunities, the Tribunal has nevertheless not been provided with any specific information about the applicant’s business plans, financial estimates or other certification and educational requirements.

    32. While he said that he did not know how much he would be expected to make in a building company, because he would have to do an assessment of the price of materials and labour, he said most workers earn around approximately 2500 rial per month in Brazil. He did not say how this related to him being a supervisor, or running a company. His mother will be the accountant if he opens a business. There is little else before the Tribunal about the applicant’s career or business plans. That suggests that he has not thought much, if at all, about the real prospects of opening such a company, or his prospects of employment in the industry when he returns. The applicant’s plans, in this respect, were vague and imprecise, and it appears that he has not thought to any specific degree about running a building and construction company. As a result, the Tribunal cannot be satisfied as to what his career goals actually are, and therefore cannot make an assessment as to the value of the courses he is enrolled in to his future. Not being able to determine that value, the Tribunal cannot place any weight on the course he is currently studying or the course in which he is being enrolled as having any value to his future work or employment prospects.

    33. Another way of determining whether the applicant will be improving his employment prospects in his home country is to look at his past employment, which is set out above. It would appear that neither the applicant, nor his past employment, has a business background or construction background. Despite the subject of his current and intended courses, he has not had or sought work in the construction industry; he explained that it is difficult to find such employment at the moment. He did say he would like more experience in the industry and was unsure if at the completion of his course he would be required to commence an apprenticeship or whether the college would assist him in gaining work experience or work as an apprentice.

    34. He said that every week he had a different project to complete at the college, and he is gaining experience that way. In any event he said that once he completes his Certificate IV course he will return to Brazil. This appears to be the case whether he is required to undertake any required experience or other requirements for any certification, or not. Therefore, neither the pursuit of a business course or a construction course would appear to build on the applicant’s prior employment or future career goals. Therefore, the Tribunal is not satisfied that the courses in which the applicant is studying and enrolled add any value to his future prospects, and, as has been determined elsewhere, there can be no weight given to the courses he is undertaking in determining a finding that he is a genuine student. Furthermore, the lack of any value adds weight to a finding that he is using the Student visa regime to maintain ongoing residence in Australia.

13. Overall, the Tribunal considered the applicant’s future plans to be unclear and was not satisfied that the courses undertaken by the applicant added value to his future career goals of supervising or running a construction company (at [35]).

14. The Tribunal acknowledged that, since arriving in Australia, the applicant had materially developed his English skills – thereby adding value to his future prospects (at [36]). However, the Tribunal also determined that the applicant had not effectively built on any business or prior construction skills or made sufficient academic progress in any field:

    39. The applicant explained in documents provided to the Tribunal and at the hearing that he felt that because he was struggling with English it would be better to take part in a practical course rather than a course with theory, such as a Bachelor of Business course. Along with being interested in the construction industry, that is the reason that he commenced a course in construction. The Tribunal is not satisfied that this is a reasonable reason for changing courses. The applicant has not shown, as has been expressed above in these reasons, that by completing any type of construction course he is building on his skills, or that his academic progression and his current courses add any value to any career goals he may have. On that basis, the Tribunal is not satisfied that the applicant is not using the Student visa program to maintain ongoing residence in Australia and this adds significant weight to a finding that he is not a genuine student for stay temporarily in Australia.

1. The Tribunal referred to a letter to the Tribunal dated 29 March 2018 wherein the applicant said that he came to Australia to study English and to obtain a qualification that would improve his professional career in Brazil. It was noted that the applicant did not mention what qualification or how that qualification would improve that career. Further, the applicant had accepted that he had taken longer than he thought he would take to learn English.  The Tribunal accepted that it might not be easy for a person to learn another language and to study in that language. However, the Tribunal noted that the applicant had taken 4 years to effectively commence any form of further industry-related study which was at a level lower than the level of education he had when he came to Australia (at [40]).

2. The Tribunal accepted that the applicant had progressed in his English skills. However, the Tribunal was not satisfied that the applicant had progressed academically.  Nor had he progressed in his chosen field, or in any field.

3. The Tribunal did not accept that the applicant’s chosen course was reasonable if he was struggling with English. It noted that the purpose of the student visa is to enable the applicant to gain a qualification or undertake a course which is consistent with their current level of education and which will help them obtain employment or improve employment prospects in their home country. The Tribunal was not satisfied that the applicant had progressed academically and weighed this against the applicant (at [41]).

4. The Tribunal was not satisfied with the applicant’s reasons for not commencing the Bachelor of Business course at Cambridge International College. Indeed, the Tribunal regarded the applicant’s unwillingness to relocate to Melbourne or leave his sister in Perth as factors that outweighed his incentives to return to Brazil (at [42]-[43]).

5. The Tribunal then considered the applicant’s circumstances in Australia. The Tribunal determined that the fact that the applicant was not in a relationship in Australia was a factor that weighed in the applicant’s favour (at [45]).

6. Turning to his professional circumstances in Australia, the Tribunal found that the applicant was a supervisor in a cleaning company and works approximately 20 hours a week. The Tribunal also noted that the applicant had very limited knowledge of the construction industry in Brazil and did not have any firm plans in relation to employment or running a business in Brazil within his chosen industry. These factors weighed against granting the applicant the visa as they highlighted strong incentives to remain in Australia (at [47]-[48]).

7. The Tribunal noted that if the applicant remains in Australia and completes his enrolled courses, he will not have achieved his goal of obtaining a bachelor’s degree in 7 years (at [49]).

8. The Tribunal noted that the applicant had returned to Brazil in December 2015 and October 2018 to visit his family. The Tribunal was satisfied that this demonstrated “some continuing ties” to his family and country and gave this some weight in his favour. However, the Tribunal did not consider that this outweighed its concerns in relation to the applicant’s motivation and incentive to remain in Australia (at [50]).

9. The Tribunal then referred to the fact that the applicant had also travelled to other countries – both before and while living in Australia – and noted that there was no evidence to suggest that the applicant had breached any visa conditions in those countries. Nor had the applicant had any other visa application refused or a visa cancelled.  Further, there were no outstanding visa applications still to be determined. There was also no evidence that the applicant’s family have visa histories of concern. The Tribunal gave this some weight in favour of the applicant (at [51]).

10. The Tribunal noted that the applicant had stated at the hearing that he works possibly more than he is permitted during semester holidays but the Tribunal gave this no weight (at [52]).

11. The Tribunal continued:

    53. The primary objective of a Student visa holder in Australia is to be enrolled in a registered course of study and to progress academically. The delegate made their decision on 13 March 2018, noting that the only courses the applicant had completed since arriving in Australia in August 2014 were English courses. We are now at the end of 2019 and it appears that there has been no change. While it does appear that the applicant is progressing through the Certificate III in bricklaying, as the delegate has noted, completing Certificate III and IV courses means that the applicant has significantly downgraded his academic progression, having originally come to Australia to study in the higher education sector. The applicant has shown no intentions of completing a degree at that level in the future. The applicant told the Tribunal at the hearing that he will leave Australia after he completes the Certificate IV course.

    54. The delegate was of the view that the lack of progression and seeking to study in a vocational education and training sector course instead of pursuing the higher education course is not consistent with the behaviour of a genuine student and that that indicated that the applicant was using the Student visa program to maintain ongoing residence.

    55. Given the Tribunal’s views, as expressed above, about the lack of real plans the applicant had when he came to Australia, and the other factors outlined, the Tribunal finds that the applicant is not behaving in a manner consistent with being a genuine student. Further, while there is no evidence before the Tribunal that the applicant has been in breach of any visa conditions in Australia or elsewhere, the applicant is using the Student visa programme to his advantage by entering with the stated intention of completing a higher education sector course, but only completing courses well below that level. The Tribunal has given that a little weight against him.

12. Having weighed up the applicant’s circumstances, immigration history and other matters, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily (at [56]).

13. Having noted that the applicant was not a minor (at [57]) and that there were no other relevant matters to consider (at [58]), the Tribunal concluded that the applicant did not meet cl.500.212(a) as the Tribunal was not satisfied that the applicant intended to stay in Australia temporarily (at [59]-[60]).

14. Accordingly, the decision under review was affirmed (at [61]-[62]).

Proceedings in this Court

1. In the judicial review application filed 8 January 2020, the applicant lists nine “grounds of review” as follows:

   1. On or about, 14 December 2017, Bruno DE SOUZA BARBOSA (the applicant) made an application for a Student Visa (500) to the Department of Immigration and Border Protection (the department).

   2. The 500 visa requires, inter alia, the applicant to satisfy the requirements of cl.500.212 of Schedule 2 of the Migration Regulations 1994 (the Regulations).

   3. The delegate in this case refused the grant of the visa on 13 March 2018 on the basis the applicant did not satisfy the requirements of the Regulations as it was their belief the applicant was using the Student Visa Programme as a means of maintaining ongoing residence in Australia and he did not genuinely intend to stay in Australia temporarily as a full time student.

   4. The applicant lodged an application for merits review and the hearing at the AAT was scheduled for 10 June 2019.

   5. At the hearing, the applicant attempted to explain his reasons for his study plan and the substantial research he had conducted on his future.

   6. On or about 8 December 2019, the applicant received notification from the AAT that it had affirmed the decision of the department and his visa had been refused.

   7. The applicant believes that relevant information was not taken into consideration at both the time of the decision to refuse the visa by the department and the decision to refuse the visa by the AAT.

   8. The applicant would like the opportunity to be heard with an open mind before any conclusions are reached.

   9. The applicant is now seeking relief in the Federal Circuit Court.

2. The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of written submissions. No further materials were provided.

3. The materials before the Court thus include to the judicial review application filed 8 January 2020, a Court Book numbering 163 pages (marked as Exhibit 1), correspondence confirming service of the Minister’s written submissions on the applicant (marked as Exhibit 2) and an outline of written submissions filed by the Minister on

   
   

   30 October 2020.

4. The matter was originally listed for hearing on 13 November 2020. On 10 November 2020, the applicant emailed Chambers advising that he was unwell and could not attend a hearing. The applicant attached a medical certificate which stated that he would have to remain at home until 14 November 2020. Chambers responded that the matter would remain listed on 13 November 2020 but that the applicant could attend via Microsoft Teams.

5. On 11 November 2020, the applicant wrote to Chambers and explained that he “really [was] not well”.

6. Noting the content of the medical certificate, the matter was relisted to Monday, 16 November 2020.

7. The applicant appeared before the Court on that date without legal representation. He was assisted by a Portuguese interpreter. The Court confirmed that he had received a copy of the Court Book and the Minister’s submissions.

8. Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concerns that he had with the Tribunal’s decision. This is the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].

9. To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision.  The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap.  For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:

   a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;

   b)where the decision-maker ignores relevant material: Craig at 198;

   c)where the decision-maker relies on irrelevant material: Craig at 198;

   d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];

   e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and

   f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

10. It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks.  Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

11. Against this background, the applicant explained that he does not understand why the Tribunal determined that he was not a genuine student. He stressed that he had over 90 per cent attendance in his courses and had never had any issues with his studies or with the police in Australia. He also advised “that [his] life is in Brazil”.

12. The applicant’s oral submissions rise no higher than disagreement with the Tribunal’s decision. They refer to the merits of the Tribunal’s decision. As explained to the applicant, this Court has no jurisdiction to review the merits of the Tribunal’s decision.

13. The applicant’s oral submissions do not identify any jurisdictional error.

Consideration of Grounds of Review

Grounds 1-4, 6 and 9

1. Grounds 1-4, 6 and 9 do not identify jurisdictional error.

2. Grounds 1-4 and 6 refer to background facts which are not controversial and which are apparent from the Court Book.

3. Ground 9 is a plea for relief. If there is a jurisdictional error in the Tribunal’s decision, the Court can grant the applicant relief if appropriate. However, the applicant must first establish error.  No error is identified. 

4. Grounds 1-4, 6 and 9 are, accordingly, dismissed.

Ground 5

1. Ground 5 provides:

   At the hearing, the applicant attempted to explain his reasons for his study plan and the substantial research he had conducted on his future.

2. Interpreting this ground broadly, it is arguable that the applicant is suggesting that he was denied procedural fairness. The use of the word “attempted” leads the Court to infer that the applicant is suggesting that he was not given a real opportunity to present his case and arguments.

3. Section 360 of the Act requires the Tribunal to provide applicants with a real and meaningful opportunity to present evidence and arguments.

4. In determining whether the applicant was provided such an opportunity, the Court notes as follows:

   a)the applicant gave a large volume of documents to the Tribunal in response to the invitation to provide information. The Tribunal considered those documents (see, for example, [5] and [13]);

   b)the applicant provided further information and evidence to the Tribunal on 1 June 2019. The Tribunal had close regard to that information and evidence (see, for example, [39]-[41]);

   c)the applicant attended a hearing before the Tribunal where he was assisted by a Portuguese interpreter. That hearing was approximately one hour in duration (CB 137-140);

   d)the Tribunal made a large number of references to the evidence that the applicant had provided at the hearing (see, for example, [25], [27], [32] and [34]); and

   e)the Tribunal recorded the applicant’s responses to questions that were asked of him (see, for example, [28]).

5. The materials before the Court demonstrate that the applicant was given, and took advantage of, the opportunity to provide arguments and evidence in support of his application.

6. There is nothing to suggest that the Tribunal rejected any of the applicant’s attempts to provide evidence and arguments.  Rather, the Tribunal received the applicant’s evidence and arguments and gave him a real and meaningful opportunity to participate and engage with the Tribunal at the hearing.

7. To the extent that the applicant is suggesting in ground 5 that he was not given a proper opportunity to present arguments and evidence, this must be dismissed.

8. The Court has otherwise considered the Tribunal’s decision and the materials before the Court and is satisfied that the procedural fairness obligations in div.5 of pt.5 were not breached.

9. Ground 5 is, accordingly, dismissed.

Ground 7

1. Ground 7 provides:

   The applicant believes that relevant information was not taken into consideration at both the time of the decision to refuse the visa by the department and the decision to refuse the visa by the AAT.

2. Insofar as this ground refers to the “Department” it must be dismissed. The Court has no jurisdiction to review the delegate’s (the “Department’s”) decision: the Act, s.476(2) and (4).

3. As for whether the Tribunal did not take into account relevant information, the Court disagrees.

4. At [5], the Tribunal lists the documents that the applicant had provided in support of the review application to the Tribunal. The Tribunal refers to this evidence in the body of its decision and considers these materials in detail. For example:

   a)the letter from the applicant dated 29 March 2018 is referred to in significant detail and findings are made in relation to its content (see, [40]-[41], [49]);

   b)the Tribunal referred to the applicant’s previous studies (including his course in Brazil), course completions and his current confirmations of enrolment (see, [17], [24], [53]);

   c)the Tribunal noted that the applicant owned a property in Brazil (see, [13]); and

   d)the Tribunal referred to the applicant’s responses to the s.359 invitation (see, [16], [31], [46], [50]-[51]).

5. At [6], the Tribunal stated that it also had had regard to the Departmental file. Relevantly, the Tribunal referenced, and considered, a letter to the Department dated 11 December 2017.

6. The Tribunal also made numerous references to the applicant’s oral evidence at the hearing. These references were detailed and formed part of the Tribunal’s consideration of the applicant’s future career plans and his incentive to return to Brazil.

7. The Tribunal’s decision is comprehensive. There is nothing to suggest that the Tribunal did not consider any relevant information provided by the applicant or broadly.

8. The Tribunal also considered all of the “relevant considerations” when determining whether the applicant was a genuine temporary entrant.

9. Relevantly, the Tribunal comprehensively considered the applicant’s circumstances (both in Australia and in Brazil as per cl.500.212(a)(i)) at [12]-[48]. A review of these paragraphs makes it clear that the Tribunal also had regard to the factors identified in Direction 69. The Tribunal’s findings show a clear engagement with [9]-[12] of Direction 69. The Tribunal expressly made findings on a number of these factors, had concerns about some of these factors and noted that no evidence had been provided in relation to some of these factors (such that it could not give them any weight). No error arises in this regard.

10. The Tribunal also considered the applicant’s immigration history as per cl.500.212(a)(ii) at [49]-[52] of its decision. The matters that the Tribunal referred to in the discussion at [49]-[52] are directly related to the factors which are listed in [13]-[14] of Direction 69.

11. Finally, the Tribunal expressly stated that cl.500.212(a)(iii) did not apply and that there were no other relevant considerations as per cl.500.212(a)(iv).

12. The Tribunal had regard to all of the relevant considerations that it was required to.

13. Ground 7 is, accordingly, dismissed.

Ground 8

1. Ground 8 provides:

   The applicant would like the opportunity to be heard with an open mind before any conclusions are reached.

2. Again, interpreting ground 8 broadly, it is arguable that the applicant is alleging bias on the part of the Tribunal or suggesting that the Tribunal did not have an “open mind”.

3. In relation to allegations of bias, the applicant must demonstrate that the Tribunal:

   a)was so committed to a conclusion that regardless of the evidence or arguments presented, its mind was closed and was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or

   b)conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].

4. Here, there is nothing before the Court which demonstrates that the Tribunal acted with actual or apprehended bias.

5. The Tribunal invited the applicant to attend a hearing. It gave him a number of opportunities to explain himself and explain why he was a genuine temporary entrant.

6. Further, the Tribunal accepted a number of matters and weighed these in favour of the applicant (for example, [19], [20], [36], [45], [50] and [51]). Further, while, on one view, the applicant may have provided evidence that he had breached his visa conditions, the Tribunal was not prepared to accept that this was the case and gave no weight to this evidence (at [52]).

1. The Tribunal provided a fair and unbiased hearing.

2. Ground 8 is, accordingly, dismissed.

Conclusion

1. The applicant’s application for judicial review dated 8 January 2020 fails to identify any error in a decision of the Tribunal dated 8 December 2019. The Court has otherwise been unable to identify any error in the Tribunal’s decision.

2. The application is, accordingly, dismissed.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date: 19 November 2020