Deol v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 180
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Deol v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 180
File number(s): MLG 1302 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 20 February 2025 Catchwords: MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) – student visa – whether the Tribunal erred in its interpretation of cl 500.212 of sch 2 to the Migration Regulations 1994 (Cth) – adequacy of the Tribunal hearing – application dismissed. Legislation: Migration Act 1958 (Cth) ss 359, 359A, 360, 360A
Migration Regulations 1994 (Cth) cl 500.212
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of hearing: 30 October 2024 Place: Sydney Applicants: The applicants appeared in person Solicitor for the first respondent: Ms C Warren, Sparke Helmore Lawyers Second respondent: Submitting appearance, save as to costs ORDERS
MLG 1302 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANDEEP KAUR DEOL
First Applicant
GURBHEJ SINGH DEOL
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application for judicial review is 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 MCCABE:
The Administrative Appeals Tribunal (the Tribunal) affirmed a decision of a delegate (the delegate) of the first respondent (the minister) to refuse the first applicant a Student (Temporary) (class TU) Student (subclass 500) visa (student visa). The first applicant’s husband was listed as a dependent spouse on that visa application. He is the second applicant in these proceedings.
The applicants have sought judicial review of the Tribunal’s decision. The grounds of review referred to several jurisdictional errors. The grounds are poorly drafted. When I asked the applicants to discuss the errors they allege at the hearing before me, they had difficulty assisting me because they had not drafted the grounds. After discussing the substance of their case with them, it became apparent the applicants had one plausible complaint that could amount to a material jurisdictional error: Ms Deol, the first applicant, believes she was denied an adequate opportunity to present her case to the Tribunal because (a) the Tribunal’s telephone hearing was (she says) rushed and perfunctory; and (b) she was not afforded an appropriate opportunity to provide additional material that might have assuaged the Tribunal’s concerns.
The hearing of the judicial review application was adjourned to allow the applicants an opportunity to obtain and tender a transcript of the Tribunal’s hearing, and to provide any written submissions they wished to make. The minister was also given the opportunity to provide written submissions. I told the parties at a directions hearing that I was inclined to decide the matter on the basis of the material before me without resuming the hearing once the submissions were filed, although I left open the possibility that either party could ask for a further opportunity to make oral submissions.
The parties filed their written submissions. The applicants also filed the transcript as anticipated. Through my associate, I enquired whether the applicants wished to make further submissions at a resumed hearing. The applicants did not respond, so I have elected to proceed. I have decided the application for judicial review must be dismissed. I explain my reasons below.
BACKGROUND
Mr and Ms Deol are a married couple. They entered Australia together on 2 February 2018 because Mr Deol had plans to undertake study in this country. He had already secured a student visa for that purpose, and Ms Deol was his dependent in relation to that application.
Ms Deol possessed nursing qualifications which she had obtained in India. Shortly after arriving in Australia as a dependent, Ms Deol said she decided she would like to undertake studies of her own. She enrolled in an Advanced Diploma of Leadership course that was to run until September 2020. She applied for a student visa in her own right, and her husband was included in that application as a member of her family.
Ms Deol’s application for a student visa was refused by the delegate. The delegate found Ms Deol did not satisfy cl 500.212(a) in sch 2 of the Migration Regulations 1994 (Cth) (the Regulations) – specifically, the delegate found the applicant did not qualify as a someone who was a ‘genuine temporary entrant’.
THE APPLICATION FOR REVIEW IN THE TRIBUNAL
Ms Deol sought review of the delegate’s decision in the Tribunal. The application for review was filed on 18 May 2018. Mr Deol was also a party to that review application.
The Tribunal sent the applicants a letter pursuant to s 359 of the Migration Act 1958 (Cth) (the Act) on 6 November 2019. The letter asked the applicants to provide information in support of their application including:
·confirmation that Ms Deol was enrolled in a registered course of study; and
·other information that would help the Tribunal understand whether Ms Deol was a genuine applicant for entry and stay as a student.
The s 359 letter was accompanied by a Request for Student Visa Information form and a copy of Direction Number 69 (Direction 69). Direction 69 is the minister’s determination that directs the attention of decision-makers to factors which might be relevant to the question of whether someone satisfies the genuine temporary entrant requirement in cl 500.212(a) of the Regulations. Ms Deol completed the form with the assistance of a migration agent. The form was returned along with a set of written submissions and some other documents, including confirmation of enrolment records: court book at pp 85ff. I note the submission (commencing at p 96 of the court book) offers the following rationale for Ms Deol studying a leadership and management course:
Leadership and Management course will definitely help me to lead my Nursing Career with better management and managerial skills. These skills will not only help me to work as a Registered Nurse but will have opportunity to work on Supervisory and Managerial Role. [sic]
Ms Deol added (in the submissions reproduced at p 97 of the court book):
I do have very little management knowledge. I need to follow my inner interest and desire and objective of being a best Nurse with good management skills.
The Tribunal’s hearing was held on 23 March 2020. The transcript of that interaction is now before me. The transcript runs for only five pages. The first two pages are taken up with the preliminary back-and-forth between the various participants attending to logistical matters. Only at the end of the second page did the Tribunal member get to the substance of the hearing. The member noted there were two things that had to be discussed. The first of those was said to be a requirement that Ms Deol demonstrate she was enrolled in a course of study, and the second was whether Ms Deol was a genuine temporary entrant. A good deal of confusion and cross-talk followed in relation to the first question before the Tribunal was able to ascertain (on p 5 of the transcript) that Ms Deol had enrolled in a course but her studies were interrupted when she had a baby. She explained she still expected to finish that course in 2021. (Ms Deol confirmed at the hearing before me that she has, in fact, completed her course and she is now seeking registration as a nurse in Australia.)
The Tribunal then appeared to pivot to the second issue it had identified for attention. The Tribunal asked Ms Deol (at p 4 of the transcript) about her husband’s current work and income. She said he was a driver and earned around $1,000 a week. She also confirmed in response to a question from the Tribunal that she was not currently working after she had the baby. Having extracted that information, the following exchange ensued (at p 5 of the transcript):
Mandeep Corr-Deol: [Interpreted] She used to work with the age care, then – after having the baby, she’s not working.
[The Tribunal]: Yes. I see. All right. Are there any other matters you want to tell me?
Mandeep Corr-Deol: [Interpreted] She said, whatever you ask me, I will tell you.
[The Tribunal]: Well, I don’t have any more questions. Is there any other matters that you want to tell me?
Mandeep Corr-Deol: [Interpreted] No.
[The Tribunal]: All right. Well, look, thank you. This now concludes the hearing. You will receive a written decision in the mail.
Mandeep Corr-Deol: [Interpreted] Okay.
[The Tribunal]: All right. Thank you. Bye-Bye.
Female: The hearing is now complete. The time is 10:34am. The member remains in the room. I'll now end the record from the call.
Having concluded the hearing, the Tribunal retired to deliberate and prepare its reasons.
The notes attached to the transcript confirm the hearing lasted 14 minutes from beginning to end. The part of the hearing devoted to the substance of the discussion was even shorter. It is also worth noting the discussion – such as it was – proceeded with the assistance of an interpreter. Experience shows that discussions conducted through a translator tend to take longer than conversations carried on in the same language.
THE TRIBUNAL’S DECISION
The Tribunal’s statement of decision and reasons was longer than the written transcript of the hearing. That statement is reproduced in the court book (exhibit one) at p 114ff. The statement of reasons begins with a conventional exposition of the ‘genuine temporary entrant’ criteria in cl 500.212 of the Regulations and the related contents of Direction 69. The Tribunal thereafter addressed background information that was relevant to its consideration of the factors identified in Direction 69, starting with the applicants’ entry and visa history. Under this heading, the Tribunal noted (at [12]) the delegate:
… had particular concern that shortly after arriving in Australia on 2 February 2018, the [first] applicant enrolled in a course of study, while the recipient of a dependent student visa... That information caused the delegate to form the view that the applicant knowingly made an application for a student dependent visa knowing she would be applying to remain in Australia well beyond that visa date, and then making an application for a student visa as a primary applicant (the person studying).
The Tribunal also noted the delegate’s suspicions being aroused by the second applicant’s pattern of studies after he was admitted to Australia.
The Tribunal next considered the Time Onshore. It briefly noted Ms Deol’s then-current enrolment status before commenting on the fact Ms Deol had “swapped roles” with her husband as she became the primary applicant and Mr Deol became a dependent. The Tribunal then briefly (and I infer uncontroversially) recorded Ms Deol’s study history.
The Tribunal confirmed (at [19]) it had regard to the material provided by the applicants in the Request for Student Visa Information form and the answers given to questions asked at the hearing. The Tribunal then turned to expressly address the matters referred to in Direction 69, starting with the applicant’s circumstances in their home country. It summarised the evidence – some of which was provided at the hearing – before concluding, relevantly:
22.The Tribunal is unable to accept the applicant’s mere assertion that her current course is unavailable in India, due to the fact that the applicant has failed to demonstrate that she has undertaken any significant research into the availability of the course in her home country.
23.The Tribunal finds that the applicant does not have significant incentives to return to India, demonstrated by the fact that her husband and child are living in Australia with her, and she has no substantial financial ties to her home country. These aforementioned matters suggest that the applicant intends to remain in Australia on a more permanent basis.
24.The Tribunal further finds that the length of time the applicant has been onshore in circumstances where she and her husband have ‘swapped roles’ (one is a primary student visa holder, the other a dependant and then the role is ‘swapped’), demonstrates and an intention to remain in Australia on a more permanent basis.
25.The Tribunal finds that the applicants have strong economic incentives to remain in Australia, demonstrated by the fact that the secondary applicant is in paid employment earning $1000.00 per week. This work history, coupled with the fact that the applicant has recently given birth while onshore, provides an incentive to remain in Australia on a more permanent basis.
The Tribunal also confirmed it was – like the delegate – concerned that the applicants had “role swapped” and undertaken courses that were unrelated to their previous education. The Tribunal also doubted Ms Deol’s course would advance her career or earning prospects.
The Tribunal then discussed the applicant’s potential circumstances in Australia. After recounting the evidence, the Tribunal found:
29.The Tribunal is unable to conclude that the applicant has undertaken any significant research into her proposed course, course contents or educational objectives. This is not the conduct of a genuine student.
30.Due to the applicant and her husband's visa history, coupled with the fact he has now had a child in Australia approximately 1 year arriving onshore, the Tribunal is of the view that the applicant is has enrolled in her course with the primary intention of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis, rather than out of any genuine desire to be a student.
31.The Tribunal gives significant weight to the fact that the applicant's husband and daughter are in Australia with her, as a factor which serves as a significant incentive not to return to India. The applicant and her husband’s visa history and their economic circumstances in Australia strongly suggest that the applicant’s desire to study in Australia is secondary to her intention to remain in Australia on a more permanent basis.
The Tribunal then restated its concern about the changing educational pathways the applicants had followed in Australia: at [32].
The Tribunal thereafter discussed the value of the course to the applicant’s future. After briefly recounting the evidence before the Tribunal, it found (at [34]-[36]):
34.The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to her future. The Tribunal is unable to accept the applicant's assertions as to the value of the course to her future as she has not provided any objective evidence as to how the completion of her current course will add value to her earning capacity given the degree and vocational qualifications she already holds.
35.The applicant has provided no objective evidence of job opportunities or expected remuneration that one might expect to obtain in India as a result of achieving the qualification she is currently enrolled in. The Tribunal is therefore unable to place any weight on the applicant's assertions as to the value of her current course, to her future.
36.Further, given the extent of the applicant's work and study history, the applicant has not objectively demonstrated that the completion of the nominated course of study will improve her remuneration prospects in her home country to an extent that is outweighed by the current cost of completing the course.
The Tribunal discussed the applicants’ immigration history which it had recounted earlier in its reasons. At [37], it declared it was not persuaded by the applicants’ explanation for their visa history and (specifically) their claim that they had come to Australia temporarily for the purposes of study. The Tribunal explained (at [37]):
37.The Tribunal has had regard to the applicant’s immigration history as set out above. Notwithstanding the applicant’s explanations for her and her husband’s visa history, which the Tribunal has taken into account, on balance, the Tribunal is not satisfied that the applicant's purpose for being in Australia is primarily for the purpose of study.
The Tribunal went on to find that, having regard to all the evidence, it was not satisfied “the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).” The decision was therefore affirmed.
THE GROUNDS OF JUDICIAL REVIEW
I have already pointed out the grounds of review were difficult to understand. I have reproduced them in an appendix to these reasons (although I will refer in more detail to several of the grounds below).
The minister’s written submissions point out grounds one through five simply restate the history of the matter. I agree. Those grounds do not articulate any identifiable jurisdictional error, which is the sole basis on which this Court may act. Ground six refers to the delegate’s decision, but that decision is not before this Court. Ground nine asserts the Tribunal failed to provide extra time for the applicants to furnish documents despite repeated requests, but the applicants conceded at the hearing before me that they had not actually made such a request. (The transcript confirms the applicants did not ask for an adjournment at the hearing.) It follows ground nine is not only misconceived, but also baseless and misleading. Ground ten also contends the Tribunal failed to provide extra time to the applicants, but there was no request for further time and no reason to allow it in the circumstances. Ground 11 criticises the Tribunal’s statement of reasons, saying it is “short and void”. As it happens, the statement of reasons is not especially short. It appears to traverse all the issues and evidence and explain how the Tribunal reached its conclusion. The applicants did not point to any shortcomings having regard to the requirements for a valid statement of reasons set out in the Act. The complaint evident in this ground to the effect that the application “clearly raises an arguable case … and must be overlooked again” makes clear the applicants are impermissibly seeking a review of the merits of the Tribunal’s decision. It follows all these grounds of review cannot be sustained, and they must fail.
I will deal with grounds seven and 12 below, but I should first address ground eight. Ground eight asserts the Tribunal wrongly interpreted the text of cl 500.212 and adds “the clauses were wrongly assessed”. I should say at once that arguing the Tribunal ‘wrongly assessed’ evidence with reference to the criteria sounds like an invitation to engage in impermissible merits review rather than an argument about legal error. With that concern in mind, I note the particulars which accompanied this ground referred to the Tribunal taking an adverse view of:
·Ms Deol’s deferment of her studies while she had her baby;
·the fact Ms Deol had not returned home since arriving in Australia; and
·the fact Ms Deol chose to study a diploma level course when she already had a bachelor’s degree.
The Tribunal noted the applicant had given birth and deferred her studies, but it is unclear how the Tribunal could be said to have ‘taken [that fact] against’ Ms Deol as she alleged. There is no doubt the birth of her daughter formed part of Ms Deol’s circumstances in this country; it was relevant to the incentives she faced to remain or return to her home. Ms Deol was unable to explain how the Tribunal’s reference to this issue was problematic. Ms Deol’s criticism of the Tribunal’s reference to her not returning home is also misconceived. The Tribunal was entitled to consider the visa history of the applicants as it considered their circumstances and their incentives to stay or return. Similarly, the Tribunal’s discussion of Ms Deol’s decision to study a diploma level course when she already had a bachelor’s qualification was not unreasonable or inappropriate; it was relevant to the questions the Tribunal had to decide.
The particulars also referred to the Tribunal’s failure to consider the financial cost of refusing the application. The minister’s solicitor pointed out before me that there is no evidence that the applicants raised this matter before the Tribunal. It is difficult to see how the Tribunal should have given weight to a submission or evidence that was not provided, assuming it was relevant.
I am not satisfied the applicants have made out ground 8. They were unable to identify any error in the interpretation and application of cl 500.212. I accept the applicants did not agree with the findings the Tribunal made or the weight which it accorded those matters in its deliberations, but those findings were open to the Tribunal. In substance, the applicants are simply disagreeing with the outcome.
I turn then to grounds seven and 12. As I indicated at the outset of these reasons, grounds 7 and 12 boil down to a complaint about the adequacy of the Tribunal’s hearing. As a matter of law, the applicants are contending the Tribunal failed to discharge its statutory review function. They say the decision which purported to result from that inadequate process is tainted by material jurisdictional error.
THE ADEQUACY OF THE HEARING
There is no rule which fixes a minimum time for a Tribunal hearing. Much depends on what is (or should be) discussed at that event. What falls to be discussed depends on the question (derived from an enactment) which the Tribunal is required to answer and the information that is already available.
In this case, the Tribunal already had the material on the Department of Home Affairs (Department) file and the decision record of the delegate. That material is reproduced in the court book; the delegate’s decision is found at pp 55ff. The delegate was clearly puzzled by Ms Deol’s choice of courses and their value to her future (see pp 9-10 of the decision reproduced at pp 63-64) and the timing of her applications for a student visa in her own right. At p 9 of the decision (p 63 of the court book), the delegate noted Ms Deol applied for a student visa shortly after arriving in Australia as a dependent. The delegate took that to indicate Ms Deol applied for a dependent visa in circumstances where she knew she would be seeking to extend her stay in this country. The delegate went on to identify other shortcomings in the applicants’ evidence regarding their economic circumstances in their home country relative to those in Australia.
Those factual questions were all before the Tribunal on review. The Tribunal made clear in the s 359 letter sent on 6 November 2019 that it was focused on whether the applicant was a ‘genuine temporary entrant’. In that letter, the Tribunal’s registry supplied a copy of Direction 69 (which directed attention to matters that would inform the assessment of whether Ms Deol was a genuine temporary entrant) and expressly asked for any information in support of that contention. The Tribunal’s invitation to attend a hearing dated 3 March 2020 repeats the request to provide documents that might assist in resolving the ‘genuine temporary entrant’ question. That letter adds (court book at p 107):
The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing.
The reference back to the issues raised in the delegate’s decision reminds us the Tribunal’s review forms part of a continuum of executive decision-making. Of course, the Tribunal is still required to conduct its review de novo: it is not there to simply fill any gaps that might be apparent in the delegate’s reasons. In this case, I am satisfied the reference in the hearing invitation to the matters raised by the delegate was a way of signalling to the applicants what sort of evidence and submissions would be useful in dealing with the statutory question it was required to answer.
The applicants were provided with an opportunity to attend the hearing and give evidence. By doing so, the Tribunal satisfied its obligations under ss 360 and 360A of the Act. The minister’s written submissions point out the Tribunal was not required to put any information to the applicants at the hearing under s 359A of the Act. All the information it used in making its determination was derived from the applicants’ oral and written evidence supplied to the Department or the Tribunal in connection with the application and the review process. To that extent, the Tribunal appears to have complied with its limited procedural fairness requirements. It was not required to raise anything else. At the hearing, the applicants were asked twice whether they wished to say anything further. If they had taken that opportunity, the hearing would presumably have extended for some time.
I acknowledge that, on its face, a hearing of such short duration might raise eyebrows. But if one accepts the Tribunal (a) provided an opportunity to appear at the hearing and provide evidence and submissions and (b) was not required to disclose its thinking at that point or further articulate its concerns, it is apparent the hearing was so short because the applicants did not take advantage of the opportunity to say anything else.
In those circumstances, grounds seven and 12 are not made out.
CONCLUSION
The application for judicial review is dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 20 February 2025
APPENDIX A – APPLICANT’S GROUNDS OF APPLICATION
1. I Mandeep Kaur DEOL, am the primary applicant and Gurbhej Singh DEOL is my dependent.
2. I applied my student visa on 05 March 2018 that was refused on 3 May 2018 because the delegate was not satisfied that I am a genuine temporary entrant student.
3. I applied for merit review application with Administrative Appeals Tribunal on within 21 days from the date of refusal and my hearing on 23 March 2020.
4. The member has affirmed my case as the member is not satisfied that I am genuine student and I am not satisfied with the decision made by the Department and AAT.
5. The grounds of the application for my case to be re-considered by Federal Circuit Court are as follows:
6. The Department of Home Affairs made a procedural error by not correctly assessing information relevant to my particular circumstances. The department failed to consider the other relevant matter in support of my case and previous immigration history and compliance with the visa condition was not considered.
7. I believe that I wasn't provided a fair opportunity to provide the verbal evidences to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs have stated that I have not done any career outcome research and I am lacking clarity with my remuneration after study. However, I did mention these points in my GTE and if they had any further question, they could have given me an opportunity to present more clarification instead of making a presumption of my lack of research.
8. Tribunal misconstrued condition cl.500.212 of Schedule 2 to the Regulations. The clauses were wrongly assessed. My genuine intentions to studies was denied by the tribunal and misconstituted as non-genuine applicant of visa
Particular:
I have provided my completion certificate of Diploma of Leadership and Management and my current COE of Advanced Diploma of Leadership and Management. Which clearly indicates that I am keen to learn and study in Australia. With my current COE the AAT has stated that I deferred the course as I had recently given birth, at that time I deferred the course as my main concern was the health of my child and myself. This deferment due to my pregnancy should not be taken against me.
The tribunal also stated "The applicant has never returned home to India since arriving in Australia" this statement is not applicable to me and depicts procedural unfairness because I was focusing on my studies and it is not in my visa conditions to travel back home during this. Even though I choose to study Diploma level course after doing my bachelor's I clearly provided my career goals and outcome which the Department and AAT have totally ignored. I choose Diploma as it was the right course for me for that specific skill which I was lacking. Tribunal failed to consider that I would face significant loss in finances as I have given a large amount of money and time for my studies in Australia and returning with refusal will be a drawback in my application.
9. Despite of the repeated request the member did not provide any time to provide the documents regarding my home ties.
10. Member erred in affirming my application without providing extra time and without any basis in law and fact.
11. My application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again.
12. Substantial justice was not provided and that's the reason I want to apply in Federal Circuit Court of Australia.
0
0
2